Bill No. 16 - Adult Capacity and Decision-making Act. - Third Reading
MS. CLAUDIA CHENDER « » : It is with sadness that I rise on the last day of this session to speak for a final time to the Adult Capacity and Decision-making Bill. When I rose earlier this week to make remarks, I closed by stating that I hoped that someone was listening and, for a moment, it seemed as though someone was.
The media was quick to note that the government paused, and that they were considering the comments of myself and my colleagues, and those at Law Amendments Committee. Sadly, that pause seems to have been little more than public relations.
After analysis by the Department of Justice, the bill came back before this House yesterday virtually unchanged. Undeterred, the Opposition proposed dozens of amendments - some large, and some small, but all meaningful. And all for the purpose of ensuring that people subject to representation orders have the support they need to exercise their most basic rights to life, liberty, and security of their persons.
The government voted down every single amendment. They were not listening - not to other members of this House, not to the dozens of experts who were consulted, who cajoled, who wrote open letters, sent amendments, and have spent hours in this gallery, hoping, just hoping, that their government would do the right thing.
We have had one victory this week - and that is that people subject to representation orders will be able to access legal aid, and I thank the minister and his department for that, and it's very important to mark that victory.
However, I have serious concerns about how this information will be made available. The minister says that via the Public Trustee, we will have education and outreach around the subject of this Act. I hope that's true, but let's be honest - the track record is not great.
When asked why the government took the unusual step of sending this bill back to the department earlier this week, the Premier told the media that they weren't given the Opposition amendments in advance, that they were somehow surprised that in Committee of the Whole, where our job is to offer amendments, that we offered amendments. This is ridiculous. We have a process for feedback and consideration, and that process is the Law Amendments Committee.
At Law Amendments Committee, we heard from seven presenters, all of whom spoke against the bill. Every amendment we proposed, every point that has been made, was made there, was made better, was made more strongly, by the people most impacted by this bill - and the government did not listen. So why the pause? I don't know. I hope it was a genuine effort to improve the bill - unfortunately, it failed.
It's especially unfortunate for Autism Nova Scotia; the Canadian Association for Community Living; the Canadian Association of Retired People of Nova Scotia; the Canadian Council of the Blind Access and Awareness, Nova Scotia chapter; the Canadian Mental Health Association, Nova Scotia division; the Community Homes Action Group; the Community Living centres; the Disability Rights Coalition; Immigrant Services Association of Nova Scotia; L'Arche Atlantic; March of Dimes Canada, Nova Scotia; Nova Scotia Association for Community Living; Nova Scotia Residential Agencies Association; People First of Canada; People First Nova Scotia; reachAbility; the James McGregor Stewart Society; and the Nova Scotia League for Equal Opportunities. They all signed the open letter from the People First Canada, Nova Scotia chapter, and supported the amendments that they and I proposed, every single one of which was voted down.
Because there is so little difference between this bill and the bill we had before us earlier this week, I will reiterate the points I have already made. Chiefly, they are that in order to succeed, this bill should establish a supportive decision-making system, recognize a different way of defining capacity that takes into account both the spectrum of capacity and the definition so it's not just physical capacity but also takes into account what capacity an individual might have with supports, and most importantly be meaningful to those affected. On those points, Mr. Speaker, this bill does nothing to meaningfully establish a supportive decision-making regime. This is the single core issue around which all stakeholders, the international and national community have come together.
The amendment that was proposed by the government does nothing for this now. It tells us that in three years, they're gonna think about it. That is little comfort.
Second, the government has not put at the front of its minds the experience of people who will be subject to this Act. The definition of capacity has not changed. We recognize with words that capacity exists along a spectrum, but we don't define capacity as including what an individual may be able to do with supports, and we grandfather in the representation orders from the Incompetent Persons Act, formerly the guardianship orders, that do not recognize a spectrum of capacity. They are all or nothing.
Third, the consultation process for this bill as well as the cyber-security bill was lacking, and this needs to change.
In recognizing the principle of always trying to impose the least restrictions on people's liberty, this bill attempted to shift the tone and content of the legislation and its negative impacts in two important ways. First was by updating the definition of capacity. This was one of the reasons that the old bill was struck down, and as I have said, they have done some work in this regard. Second was recognizing that capacity exists on a spectrum. Again, there was some work in this regard, but it's important to recognize that the bar for improvement was low.
Several times now in this House, I have called the former Incompetent Persons Act atrocious. I may be being kind. At the very least there were some serious shortcomings. The government has not substantially changed the provisions which grandfather old orders, to which I just referred.
As a signatory to the UN Conference on the Rights of Persons with Disabilities, Canada has recognized the rights to liberty enshrined in Article 12 of that document. But in fact, we recognized those rights in 1982 when the Canadian Charter of Rights and Freedoms was enacted. For the benefit of members inclined to pass this bill, here in full is the content of Article 12 of the UN CRPD to which we are all signatories:
1. States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.
2. States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.
3. States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.
4. States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.
Regular review by a competent, independent, and impartial authority or judicial body - not only do we not have this in the bill before us, Mr. Speaker, but we don't even have a review of the already unconstitutional orders that are being grandfathered in.
The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.
5. Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.
When I stood up, I said that I was standing here with sadness. I retract that. I am standing here in anger and, in that spirit, I will read you, again, Section 7 of the Charter of Rights and Freedoms. "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
National and international law recognize a person's right to exercise as much judgment as possible over their own affairs. In 1993, the Law Reform Commission pointed out the lack of constitutionality of the old legislation. As I've said before, it took us too long to act. Our own Supreme Court in striking down the former Act said, a law that provides that someone else is entitled to make all decisions for another, clearly infringes liberty and security of the person. Not much has changed here. Would this law survive a constitutional test? Time will tell.
Here we are in what I said earlier this week was a moment of opportunity. Government had the time to go back to the drawing board and get this right and, in saying that, it is so important to recognize the stakeholders in this conversation, those who were briefly consulted, and many of whom also took the time to appear at the Law Amendments Committee to universally tell this government that this bill is not right. It was frankly heartbreaking to read the submissions from People First Nova Scotia, urging us all in no uncertain terms to at least have the respect to consider the changes these front-line people and groups are recommending. From professors to community advocates, to parents to First Voices, the suggestions, amendments, and entreaties were remarkably consistent.
At their heart, they all asked for one thing: a truly supported decision-making regime, one that serves many of the most vulnerable in our province, that truly helps them to be a part of the community in which they find themselves and to have fulfilling lives and independence. Sadly, on this day, it seems that they will be denied.
Published by Order of the Legislature by Hansard Reporting Services and printed by the Queen's Printer.
Available on INTERNET at http://nslegislature.ca/index.php/proceedings/hansard/