Law Times

Law timeS • September 24, 2012 government's tabling of Bill 115, the Putting Students First Act, that passed 82-15 as the Tories joined the Liberals to push it through. In a nutshell, the act ends the process D Bill 115 sets stage for lengthy legal battle COMMENT oes he who pays the piper tru- ly call the tune? It' s a more involved question these days with the provincial of negotiations with the holdout teachers' unions and imposes a contract that freezes wages and cancels bankable sick days. It also takes a heavy fi nancial burden off the trea- sury and clears the path for similar show- downs with other public service unions. Th e big question is whether the law will been bargaining outside the legal framework for years, she says. Th e bill "is a very unusual piece of legislation," she argues. "Rather than addressing a breakdown in bargaining, it anticipates a break- down in bargaining by spelling out the agreement the bargain- ing parties are expected to reach and imposing consequences if they do not reach it." In formulating the legisla- As such, the Liberals have stand up. Th is fi ght has just begun, as anyone following the issue knows. A constitutional challenge is in the works with just about ev- ery union in the province chipping in to pay the cost because they know they're next. In essence, it moves the province closer to former premier Mike Harris' way of think- ing: We pay and you do what we say. Local bargaining is all well and good, but at the end of the day, the province foots the bill. In a previous column that looked ahead s Uni- Queen's Park Ian Harvey tion, she says, the government sought to meet the anticipated constitu- tional challenge and then normalize and facilitate its intent to circumvent the legal bargaining structure by imposing a con- tract if the parties don't reach the agree- ment the bill requires them to settle on. Th e lobby group People For Education to the threatened legislation, Elizabeth Shil- ton, a senior fellow at Centre for Law in the Contemporary Workplace at Queen' versity, noted there's a big fl y in the recipe: the process doesn't align with the legislation. tabled its concerns during hearings earlier this month. "Th e fi nal bill, if passed, will give the provincial government a number of new legal rights: to impose contracts, ban strikes and lockouts (and even the threat of strikes), and circumvent the courts, the Human Rights Code, and the Labour Relations Act," said executive director Annie Kidder. "Th e law itself will be in eff ect for two years, but the bill gives the province the right tured crisis is somewhat amus- ing because it recalls former education minister John Sno- belen' about meaningful educational reform. Sno- belen, who served under Harris, went on to introduce Bill 160, a piece of legislation that irreparably harmed relations between the province and teachers. Incidentally, as Shilton notes, the Liberals never fully dis- mantled that legislation even though they had opportunity to do so on taking power. All of this looks and sounds more and to create a useful crisis to bring more like Harris and his government to the point where the Canadian Civil Liberties Association calls it an "unprecedented attack on the civil liberties and constitutional rights and freedoms of educational workers. rected at the government for years. Despite supposedly being "emergency We haven't heard rhetoric like that di- " s call in 1995 for action to to extend the law for at least a year beyond that and to impose permanent regulations shiſt - ing control over teacher hiring and student assessments. All of this is happening with no pub- lic consultation and under the cloud of a manufactured crisis." Th e caution of a manufac- legislation," the bill contains a few surpris- es, says Shilton. "It is still somewhat unexpected to see in an emergency labour relations statute like this provisions which give the government regulation-making power, such as hiring processes and diagnostic assessments — which may be diffi cult to characterize as emergency issues — and the power to make what are clearly intended to be permanent changes to the sick-leave credit system." Further, as Kidder' the bill gives cabinet an adjudicative role that traditionally lies with the Ontario Labour Relations Board, an arbitrator or the court to ensure collective agreements comply with the law. With the legislation in place, it could be s organization notes, a couple of years before the courts resolve the constitutional issues. What would happen then? Do the parties go back and negotiate retroactively? Will als even have to face that situation? Th ey might be out of offi ce by then, leaving a lovely mess for the next government. Harris must be chuckling. the Liber- LT Ian Harvey has been a journalist for 35 years writing about a diverse range of is- sues including legal and political aff airs. His e-mail address is ianharvey@rogers.com. Denial by process hinders service to people with mental-health issues u SPEAKER'S CORNER BY SARAH SHARTAL For Law Times a replacement for the residential psychiatric hospitals. As these individuals cycle through incarceration, their health oſt en deteriorates and their behaviour becomes more chaotic. Th is makes their lives even more diffi cult and increases costs to the public. As a legal community, we need to ask why this keeps happening. Part of the answer relates to the failure of the health I nnumerable reports document the dispropor- tionate incarceration of people who live with severe mental-health and addictions issues. In es- sence, the provincial detention centres have become public. Very few have bank accounts and most don't have e-mail addresses or phones. By their mid-40s, they've cycled through hospitals and jails for most of their lives. Th e dominant legal paradigm presumes cognitive Many have diffi culty interacting appropriately in counsel lawyers see hundreds of people a week. Th ey should have time for more than a triage relationship. Legal aid also makes a distinction between crimi- ence the factors that gave rise to the charges, particularly the lack of money and housing. In addition, the legal clinic system presumes that peo- and justice systems to accommodate the disabilities of these individuals. It's a principle of Canadian democracy that everyone should be able to access public services. Although most public buildings have wheelchair ramps and elevators, very few institutions have considered the barriers to access of individuals who live with severe per- ceptual and cognitive impairments. As a lawyer, my practice focuses on providing services to clients with severe mental-health and addictions is- sues. My clients live with multiple layers of thought disor- ders. Th ese include signifi cant problems with short-term memory loss, limited ability to concentrate or maintain thought, and profound distractibility. Most have been the victims of sexual and physical abuse. Th ey're oſt en fearful of both authority and any form of public scrutiny. Th e overwhelming majority began to overuse in- ability. Every step of the justice system presumes that an individual will show up somewhere without assistance. Th ere's also a presumption that if someone wants legal assistance, they'll ask. Th is assumes that the person un- derstands that it's possible to infl uence the outcome. We also presume that someone is either wholly inde- nal law and poverty law. As a result, lawyers working to resolve the charges rarely consider trying to infl u- ple understand that someone might help them if they go to a clinic. However, this also requires them to go to the clinic, wait to speak to someone, and keep appointments. Th ese presumptions discriminate against clients with perceptual and cognitive impairments. Another layer of discriminatory barriers occurs in Le- pendent or completely dependent. However, the reality is that many people are somewhere in between. Clients with severe cognitive disabilities, including those with mental-health and addictions issues, oſt en have limited interactions with anyone or any institution beyond their life on the street. Most of these clients don't qualify for bail because they toxicants before they were 13 years old as they tried to get some relief from the grief and rage that echoes in the mind. By their mid-40s, they live with both mental- health issues and the secondary addictions. As a result of these disabilities, they oſt en have trou- ble remembering dates, times, and appointments. Most have been arrested numerous times for various forms of impulse control behaviours ranging from street fi ghts to retail shopliſt ing. Th eir criminal records are also replete with several failures to attend court, failure to comply with court orders, and breaches of probation. Although these clients should be receiving disability support, very few can complete the application process without help. As a result of their inability to attend appointments, have no sureties and aren't eligible for the provincial bail supervision program since they have repeated convic- tions for failures to attend everything. Th erefore, they stay in jail. It takes a long time to get a trial. As a result, a very large portion of these clients plead guilty to get out of jail. It's not unreasonable to choose a three-week sentence instead of waiting in custody for months for a trial. Moreover, the overwhelming majority of these clients my clients are unable to work with many agencies. Th ere- fore, they're commonly unable to work with family physi- cians or legal aid clinics and regularly breach conditions related to probation and bail reporting. these clients' access to justice. While in custody, a series of duty counsel lawyers will interview them for minutes at a time. Most of these clients, however, are deeply mistrust- ful of strangers and people in authority. Th e duty counsel system involves an immediate triage evaluation. Duty don't have representation in part because of their inability to negotiate the administrative requirements of legal aid and also because many lawyers don't want to work with clients with serious mental-health and addictions issues. However, even when they have representation, the resolu- tion of their cases too oſt en involves court orders and pro- bations they can't maintain. A person who has diffi culty remembering to wash and has a history of an inability to attend appointments isn't going to be able to maintain a reporting obligation. Someone who has been an alcoholic for 40 years is unlikely to abstain from alcohol. Th e way legal aid organizes itself can be a hindrance to www.lawtimesnews.com PAGE 7 gal Aid Ontario's phone application process. In addition to presuming that people understand that they might be eligible for assistance, the application system assumes the ability to use the telephone and the cognitive focus to be able to remain on the line, push the right buttons, and answer strangers' questions. Th e system also presumes someone has an address and the ability to send forms by mail or fax. In my opinion, this is akin to requiring a paraplegic to climb stairs in order to apply for assistance. Th e legal community, including the attorney general, judges, agencies, defence counsel, and legal aid, have a duty to accommodate our clients' disabilities. However, the legal community rarely addresses these issues. Th e Ministry of Health funds mobile health teams and street nurses. Ontario Works has established a proj- ect that assists homeless clients with applying for disabil- ity benefi ts. But the Ministry of the Attorney General hasn't explored alternative service-delivery models. None of Ontario's law schools or continuing legal education programs provide instruction on how to accommodate clients' cognitive and perceptual impairments nor do they off er training on how a lawyer should consider those issues when handling individual cases. A group of dedicated lawyers have spent years des- perately trying to save clients from suff ering as a result of denial by process. However, as a legal community, we haven't collectively examined how our own policies and procedures may discriminate against clients. If we can acknowledge the legitimacy of clients' impairments, we should be able to consider how we can accommodate those disabilities in the provision of services. LT Sarah Shartal is a lawyer at Roach Schwartz & As- sociates in Toronto.

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