Friday, October 3, 2014

PRESS RELEASE: Conservative Government’s last minute appeal of Federal Court ruling on refugee health cuts prolongs unnecessary suffering

 
TORONTO, ON – October 1, 2014 – At the very last legal minute, the Conservative Government has appealed the Federal Court decision on refugee health care to the Federal Court of Appeal. Canadian Doctors for Refugee Care (CDRC), the Canadian Association of Refugee Lawyers (CARL), and Justice for Children and Youth (JFCY), all parties to the original court action, denounced the government’s decision today as cynical and irresponsible.

"It's another sad day for refugees”, said Dr. Philip Berger, founding member of Canadian Doctors for Refugee Care and Medical Director, Inner City Health Program at St. Michael’s Hospital.  “The Conservative Government is recklessly choosing to let vulnerable people, including pregnant women and ill children, suffer rather than accept the very clear and comprehensive decision of the court".

On July 4, Justice Mactavish of the Federal Court ruled that the federal cabinet’s cuts to refugee health care were “cruel and unusual treatment” and thus a violation of s. 12 of the Canadian Charter of Rights and Freedoms.  The court also ruled that the health cuts were inequitable and discriminatory, and therefore breached the Charter’s s.15 equality guarantee.

“The government is in denial”, added Lorne Waldman, President of CARL and lead counsel on the case. “The factual conclusions of the court were clear: before the cuts, refugees received no more than basic health care; secondly, the cuts applied to all refugees save Government Assisted Refugees, not only fraudulent claims, as the government alleged; finally, the cuts put lives at risk. The government’s bafflegab about cutting health care to keep fraudulent refugees out of Canada, was exactly that – bafflegab. It was a smokescreen for a wrong-headed policy and the Federal Court shot it down.”

This latest government action is particularly curious given a recent Forum opinion poll revealed Canadians are not in favour of providing refugees with less access to health care. 
Mitchell Goldberg, Vice-president of CARL called the government’s decision to appeal shockingly cynical.  “They know the health cuts put lives at risk. Rather than reinstating the refugee health program, they delayed their appeal to the last minute. What part of ‘lives at risk’ do they not understand?”

The government has also asked the Court of Appeal to stay the court order until the appeal is decided which means many more months where refugees continue to be denied health care.  The group plans to vigorously oppose the government’s stay motion, as well as its appeal.  

“The government knows it is wrong on this issue” said Dr. Meb Rashid, founding member of Canadian Doctors for Refugee Care and medical director of the Crossroads Clinic at Women's College Hospital. “More than 20 national health organizations and every provincial health minister representing various political parties have called on the government to reverse their dangerous cuts. What will it take for the Conservative Government to listen?”

-30-
For further information contact: 

Lorne Waldman (CARL): 416.254.4590 | lorne@lornewaldman.ca 

Mitchell Goldberg (CARL en fran├žais): 514.844.7528 | mitchell.goldberg@gmail.com 

Christopher Holcroft (CDRC): 416.996.0767 | Chris_Holcroft@yahoo.com 

Emily Chan (JFCY): 416-920-1633 | chane@lao.on.ca 

Tuesday, September 9, 2014

"Especially and Particularly": How The Charter Rights of Children Are Finally Being Granted Unique Consideration By The Courts




Written by JFCY guest blogger: Brock Jones, Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. This is written in a personal capacity and does not reflect the views of the Attorney General of Ontario nor the Office of the Crown Law Criminal. 

Should children be entitled to different constitutional protections from the courts than similarly situated adults?

Canadian law has long recognized the inherent vulnerability of children and the need to provide them with particular protections in a variety of contexts. Yet, surprisingly, the courts have been reluctant to explicitly hold that the Charter of Rights and Freedoms bestows upon children any enhanced constitutional protections.  For example, over 20 years ago, in R v M. (G.C.), the Ontario Court of Appeal ruled that young persons are not to be granted a “special constitutional guarantee” which would differ in substance to that available to adults.



Yet two recent judgments – decided in very different contexts – may signal a tipping point has been reached where courts are finally willing to recognize that violations of children’s constitutional rights should be viewed differently – and inevitably more significantly – than those of adults. This blog post will address the Ontario Court of Appeal’s decision in R. v S.B. 2014 ONCA 576 (decided under s. 11(e) of the Charter) and the Federal Court’s decision in Canadian Doctors for Refugee Care v Canada (Minister of Citizenship and Immigration) 2014 FC 651 (decided in part under s. 12 of the Charter) and their potential implications.






On April 3, 2011 a search warrant was executed on S.B.’s residence. Two loaded guns were found in his closet. He was arrested and held for a bail hearing. The case was adjourned, first on consent, to April 6, and then over the objections of S.B.’s counsel to April 14. The Crown sought his detention, but he was released by the youth justice court. He was 17, and had no prior record.

At trial, S.B. claimed that his rights under section 11(e) of the Charter were violated. Section 11(e) provides that any person charged with an offence is “not to be denied reasonable bail without just cause.” The delay of 12 days before S.B. could have his bail hearing was found to violate this provision by the trial judge and this decision was upheld on appeal.

S.B. sought a stay of proceedings of the charges he faced as a remedy under section 24(1) of the Charter. While the Court of Appeal ultimately upheld the trial judge’s decision to decline such a remedy, the Court did make several findings worthy of note. 

First, it held that the delay in obtaining a bail hearing for 12 days for S.B. undermined the integrity of the justice system.  S.B.’s status as a young person, that he had no record, and that he “probably” would have been released in any event were noted as significant factors to weigh.[1]



The Court had particularly strong language for the conduct of the Crown, which had been responsible for much of the delay:



The Crown’s conduct failed to take into consideration the need, especially for young persons, for an early bail hearing. As the trial judge said: “The fact that the declaration of principle in the Y.C.J.A. refers to special considerations which apply in respect to proceedings against young persons should compel all persons participating in the proceedings to guard against infringements.[2]



The emphasis is my own, but the point is clear: the infringement of S.B.’s constitutional right was “especially” significant due to his status as a young person.


In Canadian Doctors the applicants challenged the constitutionality of the Federal government’s 2012 cuts to health insurance coverage for refugee claimants. The result of the cuts was to significantly reduce the level of health care available to these individuals, and all but eliminate it for some pursuing risk-based claims.

Some 21 national medical organizations offered statements expressing concerns with respect to the cuts. Expert evidence filed in the application noted that the lack of health insurance would have a “detrimental impact on the health of children.” The President of the Paediatric Chairs of Canada criticized the cuts as well and warned against the negative impact they would have on children’s health outcomes.

The applicants (including JFCY) alleged these cuts violated sections 7, 12 and 15 of the Charter. It is under the Court’s section 12 analysis that the most powerful findings with respect to the rights of children may be found.

Section 12 of the Charter prohibits “cruel and unusual treatment or punishment.” As held by the Supreme Court of Canada in penal cases, only treatment or punishment that “shocks the conscience” of the community and “outrages our standards of decency” will rise to the level of a breach of this section.

In paragraph 11 of the judgment the Federal Court found that the health care cuts in question met this very high standard. The cuts constituted cruel and unusual treatment “particularly, but not exclusively”, as they affected children who had been brought to Canada by their parents.

The Court further held that the modifications to the health care program in fact



…potentially jeopardize the health, the safety and indeed the very lives, of these innocent and vulnerable children in a manner that shocks the conscience and outrages our standards of decency.[3]


The “cruelty” of the cuts, which could lead to “unnecessary pain and suffering”, was “especially evident insofar as they affected children.”[4] Children, the Court emphasized, who were entirely innocent and subject to the whims of their parents’ decisions.[5]



Potential For A New Paradigm?

Thus, “especially” and “particularly”, the Charter rights of these children were found to have been breached. It should be noted that in neither case did the Court find that a similarly situated adult would not have had his or her Charter rights violated as well. (Indeed, in Canadian Doctors the court expressly found both adults and children had their Charter rights violated.)   

But by noting that the violations in question took on an enhanced or unique status given that the applicants were children, the Courts may be slowly opening the door to a formal recognition that state conduct must, in certain circumstances, be held to a higher standard of scrutiny and care when the constitutional rights of children are at stake.



[1] Para 39.

[2] Para 21.

[3] See para. 691.

[4] See paras. 637 and 658.


[5] See, for example, paras 638, 664, and 669.

Wednesday, May 14, 2014

JFCY supports Children and Youth in Care Day


STATEMENT
  
Toronto, Ontario, 14 May 2014 – Justice for Children and Youth (JFCY) is pleased to recognize Ontario’s first annual Children and Youth in Care Day, and affirm our dedication to assisting youth in and leaving care. Our clinic regularly helps young people navigate the often complex web of legal and non-legal issues that come with being in care or leaving care.

Children and youth in and leaving care face a number of challenges in education, social life, and housing arrangements. It is our collective responsibility to provide excellent care and seamless transition plans for youth in and leaving care. The Youth Leaving Care Hearings held at Queen’s Park in 2011 highlighted the need for change. Positive changes undertaken by the Ontario government since that time include: 

  • Better accessibility to services if a young person leaves care and would like to re-enter;
  • Extended services to youth transitioning out of care who are still in school; and
  • Further supports to youth transitioning out of care through the Youth-In-Transition worker positions created by the Ministry of Children and Youth Services.
More change is needed. JFCY continues to advocate for equality to all youth in our care system which stands in the position of the young person’s legal guardian. A gap in service still exists for 16 and 17 year olds accessing care for the first time. Youth needing care after they turn 16 are left with few choices to sustain their safety and security, often leaving them with no option but the shelter system or the streets.

This first annual Child and Youth in Care Day, let us all recognize the bravery and resilience of children and youth in care, and affirm our support to them. We look forward to working with young persons, community members, and the government to continue to strive to meet the needs of young people in Ontario.  

Tuesday, April 29, 2014

R v Manitowabi: The Significance - and Limits - of a Diagnosis of FASD for Young Persons Involved in the Criminal Justice System



Guest post by Brock Jones, Crown Counsel [1]

The Ontario Court of Appeal released a ground-breaking decision today on the significance of a diagnosis of fetal alcohol spectrum disorders (“FASD”) for young persons in criminal. While the Court clearly acknowledged the nature of FASD and its implications for criminal culpability, it also put significant limits on the use of such a diagnosis unless specifically applied to the facts of a particular case. 

Dakota Manitowabi was 16 years of age at the time of his offence. He attended a party where he was not invited and was asked to leave by the homeowner. He did leave, but returned with a large knife. When confronted about his presence again, he stabbed the homeowner once in his torso. The victim died approximately 15 minutes later.

At trial, Manitowabi did not dispute he committed the stabbing but argued he lacked the intent to kill and should not be found guilty of murder. The defence failed and he was found guilty of second degree murder. The judge imposed an adult sentence of life without parole for seven years (the maximum sentence possible) and also lifted the ban on the publication of his identity.[2]

What is FASD?
FASD refers to a wide array of behavioural and intellectual difficulties associated with damage to the human brain caused by exposure to alcohol during pregnancy. Current research suggests the prevalence of FASD in the general population of between 2-5%[3], and the rate in prisons (both juvenile and adult) could be at least 10 -15 times that number.[4]

In Manitowabi, the Court of Appeal noted the following about FASD at paragraph 40:
FASD is a permanent neurodevelopmental disorder. It is an umbrella term describing a range of effects that can occur in an individual whose mother drank alcohol during pregnancy. Those effects can include physical, mental, behavioural and learning disability. Fetal Alcohol Syndrome (“FAS”) describes the most severe manifestation of the disorder…[5]

The Court continued to note that FASD “impacts on executive functioning”, which in turn refers to “specific cognitive skills”, including the ability to grasp “cause and effect.”[6] However, it cautioned that the expert testimony in the case before it warned that executive functioning is an “ambiguous” term referable to a “wide variety of cognitive abilities”, whose deficits are “inherently difficult to measure.”[7]

Does a Diagnosis of FASD matter?
At trial, it was unclear if Manitowabi suffered from FASD and thus defence counsel did not vigorously pursue its significance. By the time of the appeal, several years later, the Court of Appeal had expert evidence before it which established as a probability the appellant suffered from some form of FASD.

The Court accepted that FASD and its effect on executive functioning could be relevant to both a young person’s guilt at trial and his or her moral culpability for the purposes of sentencing. However, it also noted that the “impact of FASD on executive functioning will vary from individual to individual and will vary for the same person from situation to situation.”[8] A blanket, abstract diagnosis of FASD will thus be of limited value.

Rather, clinical tests conducted by an expert witness that will assist with understanding the particular impact of FASD on the young person before the court were recommended. Additionally, the Court of Appeal emphasized that the significance of an FASD diagnosis must be tailored to the specific crime before the youth justice court.

Thus, in Manitowabi’s appeal, the expert evidence presented did not assist with the specific circumstances of the case – that is, whether or not his probable affliction of FASD impacted on his ability to foresee the consequences of stabbing the victim.[9] And while such a diagnosis could “attenuate the moral blameworthiness” of a young offender, since it was not established FASD was relevant to the specific crime in question (i.e. murder), it “could not shed any new light on the appellant’s moral blameworthiness.”[10] As a result, both the conviction and adult sentence were upheld.

Implications for Future Cases
Following Manitowabi, there can be no doubt a diagnosis of FASD for a young person is highly relevant in youth criminal proceedings. But counsel must be cautioned against relying on a mere abstract diagnosis and arguing their client is therefore entitled to an acquittal at trial or mitigation at sentencing. Rather, an expert opinion, specifically tailored to the exact criminal acts in question, must be proffered.

Obtaining an expert opinion that a young person suffers from FASD is already a challenging hurdle for the defence to overcome, as it typically requires the young person’s mother to admit to drinking during pregnancy. Once obtained, its value to the defence is often simply presumed as it establishes a highly mitigating factor. Following Manitowabi, that would be a serious mistake.
While it is incumbent upon all participants in the youth criminal justice system to acknowledge the prevalence of mental health concerns among young persons appearing in the criminal courts, the highly individualized nature of each particular case must always be appreciated. 

Resources Available Online
Thankfully, a wide variety of resources exist online to help interested parties learn more about FASD.
FASD Ontario Network of Expertise (FASD ONE) is a group that works together to address issues related to Fetal Alcohol Spectrum Disorder (FASD) in the province of Ontario. Membership includes experts and specialists in research, health promotion, diagnosis, justice services, community and policy development, and service delivery as well as family members who have intimate knowledge of the practical needs of individuals with this disability. Their website has more information including contact numbers for local diagnostic clinics: http://www.fasdontario.ca/cms/resources/diagnostic-clinics

An excellent guidebook for educational practitioners can be ordered online from http://www.motherisk.org for a small fee: http://www.motherisk.org/documents/understandingFASD_OrderForm.pdf



[1] Brock Jones, Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. Any views expressed herein are mine alone and do not represent those of the Crown Law Office nor the Ministry of the Attorney General.

[2] The Youth Criminal Justice Act prohibits the publication of information that would identify a young people as having been dealt with under the Act (s.110 and related sections). 


[3] May, P.A., Gossage, J.P., Kalberg, W.O., Robinson, L.K., Bucley, D., Manning, M. 2009. FASD from various research methods with an emphasis on recent in-school studies. Developmental Disabilities Research Reviews 15: 176-192.


[4] http://www.johnhowardbc.ca/images/jhsbc-factsheet-fasd.pdf


[5] R v Manitowabi 2014 ONCA 301 at para 40


[6] Ibid. at para 41


[7] Ibid. at para 42


[8] Ibid. at para 43


[9] Ibid. at para 58.

[10] Ibid. at paras. 64-65

Wednesday, April 16, 2014

Have You Been Carded?


You’re walking home after school and from the corner of your eye you notice a police cruiser approaching you. You think nothing of it, as you haven’t committed a crime. 

Not too long after, you hear a “hey you” from the direction of the cruiser, and find the officer inside motioning at you to come over. You approach and the officer asks you, “where were you going?” and “do you have anything illegal on you.” and then continues with, “you matched the description of a suspect in nearby house break-ins” or “we’re looking for someonen who matches your description.” Finally, they end by asking for you for identification or to give them personal information such as your name, age and address. 

The collection of this information being collected on a Toronto Police form and entered into a database is often referred to as “carding”. Carding is an unfortunate reality for many youths, and disproportionately so, for young males who are ethnic minorities. In law, when an individual is approached by an officer and asked for personal information, the person can decline to answer as his or her right to remain silent are protected under the Canadian Charter of Rights and Freedoms. However, failing to answer or not cooperating can lead to greater problems. Each person must decide what to do in this situation.
http://csg.lao.on.ca/

Why do officers randomly collect personal information from the public?

The police justify carding as a method to reduce crime in high-risk communities. Police officers are asked to document their daily practice and to be as detailed as possible, this includes taking notes of incidents as they happen and documenting their interactions with the members of the public. Large quantifies of carding forms are completed by the police in the identified communities. Additionally, filling out these carding forms is regarded by the police as good police work because the information collected is entered into large databases that the police use to search for connections, persons of interest, and bystanders of previous crimes. 

Problems with "carding"

The police have been under heavy scrutiny in Toronto (as well as in other large cities such as New York USA and London UK) because research shows that the police stop racial minorities more frequently. A Toronto Star article reported that the number of black youths carded in Toronto over the last five years is equivalent to the number of black youths in the city itself. 

The finding that minorities, such as African-Canadians, are stopped for carding at a higher rate than other groups is problematic. The Charter of Rights and Freedoms and the Ontario Human Rights Code both protect individuals against discriminatory treatment. As representatives of the state, police officers should be held to an especially high standard. In targeting ethnic and racial minorities over other groups, the Toronto police has potentially violated the fundamental rights of many innocent citizens and there is a Stop Police Carding Campaign: http://stoppolicecarding.com/

Recommendations for improvement

In response to the over-use of carding by the Toronto police, the the Toronto Chief of Police Bill Blair is required to release statistics of individuals being carded every three months, and to directly address discriminatory practices by law enforcement authorities. The police may soon be required to give out "receipts" or copies of the completed information form that also states the purpose each stop. Other suggestions that have been made to improve police practices includes the development of stricter criteria for carding, strengthening diversity training for law enforcement teams, and limiting the amount of time for retaining personal information.


Reference: http://www.thestar.com/news/crime/2013/11/18/toronto_police_urged_to_stop_carding.html

Thursday, March 20, 2014

Youth Medical Rights

                                      

http://legalrightsforyouth.ca/sites/default/files/pictures/youth/med1.jpg

A person can encounter many healthcare problems over the course of his or her life. From broken arms, mental health needs, to unwanted pregnancies, there are many scenarios in which youth require healthcare services. While many believe that youth health issues are up to their parents and/or legal guardians, young people have many rights that they should be aware of.

Healthcare Decisions

In general, minors (under the age of 18 in Ontario) have the legal right to make their own healthcare decisions. These decisions can include dental care, surgery, substance addiction treatment, etc. The law presumes that minors are capable of understanding the treatment, the treatment process, as well as the risks and benefits associated with the treatment. It is up to the healthcare practitioner (i.e. doctors, nurses, therapists, etc.) to make the decision regarding the minor's capabilities. If the doctor finds that the minor is not capable of understanding the proposed treatment, a substitute decision-maker must act on the minor's behalf; and the minor has a legal right to challenge the finding of incapacity.

Under the Health Care Consent Act, all medical treatments must not be administered until consent has been acquired:

No treatment without consent
10.  (1)  A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,
(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or
(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1).

Confidentiality

Under the Personal Health Information Protection Act, minors over the age of 16 can act on their own behalf over the collection, use, or disclosure of their medical information, provided that they are capable of understanding the information.

Persons who may consent
23.  (1)  If this Act or any other Act refers to a consent required of an individual to a collection, use or disclosure by a health information custodian of personal health information about the individual, a person described in one of the following paragraphs may give, withhold or withdraw the consent:
1. If the individual is capable of consenting to the collection, use or disclosure of the information,
i. the individual, or

Children under the age of 16 have less freedom over their decisions, but still have the right to make decisions over certain issues.


23. (2) If the individual is a child who is less than 16 years of age, a parent of the child or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of the parent unless the information relates to,
i. treatment within the meaning of the Health Care Consent Act, 1996, about which the child has made a decision on his or her own in accordance with that Act, or
ii. counselling in which the child has participated on his or her own under the Child and Family Services Act.

Conflict if child capable
23. (3)  If the individual is a child who is less than 16 years of age and who is capable of consenting to the collection, use or disclosure of the information and if there is a person who is entitled to act as the substitute decision-maker of the child under paragraph 2 of subsection (1), a decision of the child to give, withhold or withdraw the consent or to provide the information prevails over a conflicting decision of that person.

There are exceptions to this principle, however. For example, disclosure of health information may be justifiable to reduce risks of serious harm:

40.  (1)  A health information custodian may disclose personal health information about an individual if the custodian believes on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons. 2004, c. 3, Sched. A, s. 40 (1).