BILL NO. 16 - Adult Capacity and Decision-making Act. - Second Reading
MS. CLAUDIA CHENDER « » : I'm pleased to rise and speak to Bill No. 16, the Adult Capacity and Decision-making Act. I'll start out by saying that I think the member for Pictou West and I spoke to many of the same stakeholders. So many of my comments may be repetitive, but I will say them anyway just for emphasis. Maybe if we say it twice, it will have double the impact.
To start, anyone who has encountered this issue in their own personal lives understands its complexity. This is not a simple area. It's not a simple area of the law. It's not a simple area of life.
The member for Pictou West went into the Landon Webb case in some detail. Of course, that case is, in many ways, the reason we're here discussing that. But it's also a good illustration of the challenges of what we're discussing, which is this all-or-nothing approach that we just heard about. The court's decision to strike the Incompetent Persons Act placed an onus on government to replace this legislation and really afforded government quite a rare opportunity to get it right, to engage the law in the area, to engage stakeholders, to look at the work undertaken by governments in other jurisdictions, and to update the legislation so that it accurately reflects reality and is appropriate in all its areas.
Mr. Speaker, once again we have been told, at the very least on that previous laundry list, that engagement by this government on this legislation has fallen short. Knowing that time is of the essence, nonetheless, there has been time, and we have heard from many stakeholders who are not happy with the way that went. That being said, I know the government has been provided some feedback from a number of stakeholders regarding the redrafting of this legislation. Like my colleagues, we will be listening very closely to see what those stakeholders bring forward at Law Amendments.
As we just heard, many of them were only presented with the final draft of this legislation on Monday. Just to refresh the members' memories, Monday was in fact the day that this was introduced. We have heard that many of the people in that room being presented with this didn't know that the bill was being introduced on Monday and only found that out later through a press release. Clearly, there have been some challenges in that area.
In the meantime, I am concerned by the initial reaction of the Nova Scotia and Canadian Associations for Community Living, which issued a press release which the member for Pictou West quoted from. The release was highly critical of the bill and called it "An Alarming Violation of Human Rights." I'll repeat the quote as well that the member for Pictou West provided to the House. They state that the bill "falls far short of its stated aim to 'promote the dignity, autonomy, independence, social inclusion and freedom of decision-making of adults.'" These are strong words from organizations that are on the ground working with those who need varying levels of help and guidance making decisions that will impact their lives.
The organization's press release points to a number of ways, and we have heard many of them, that this bill could be strengthened. They highlight the need to recognize a duty to provide reasonable accommodations in the decision-making process. They note that this duty is recognized by international law and in Canada by the Ontario Human Rights Commission. They advise guaranteeing "access to alternatives as a first response where a person's decision-making capacity is questioned by others." They suggest that "This can be done by providing access to rights advisors - whether in the health care system or through community agencies." Stemming from this previous suggestion, they suggest to "Designate community agencies to provide independent advocacy, rights advice, communication intermediaries and other accommodations,. . ." would be a solution.
I also want to speak a little bit to what the member for Pictou West mentioned, which I think is really one of the most alarming aspects of this bill. This bill, Mr. Speaker, deals with marginalized people and so, by definition, these folks don't have access to the same, at the very least, decision-making capacity, if they're under one of these orders but, beyond that, you know, in many cases, are isolated in other ways. There's no dollar amount that goes with this bill, unlike where we landed with the Accessibility Act. There's no position that goes with this bill.
Despite the assurances of the Minister of Justice that there will be education and rollout - I take the government at their word that they'll do that - but, in an ongoing way, it's completely unclear from what's in front of us, how people, both those folks who are representatives, will know what that entails, being a representative; particularly when we're moving to a more complex scheme which is a decision-based representation. It's no longer saying you're the guardian, you make all the decisions. We're saying you make some decisions, and that's not a simple thing, and so we want to be sure that people understand what those decisions are and where the boundaries of that representation order is, and I'm not satisfied at all that those are laid out here.
They also argue the need to "Recognize supported decision making as a valid legal alternative" - the community groups that we spoke with, whereby a person can have their representative assist in making decisions, without being authorized to have power over the person's decision. So, it's another layer of complexity that these advocates who have been working in this field for decades, feel is absolutely required in order to be supportive of this bill.
Finally, the release that I referenced earlier suggests that the bill should require evidence that reasonable accommodations and alternatives have been exhausted, prior to the court appointing a representative to make decisions. Again, really shifting - you know, I think that the spirit of this bill is absolutely right, but I'm not convinced after talking to stakeholders and to lawyers, that the language gets us there. So, these are all the ways in which stakeholders are telling us that we're not there yet.
Now, through conversations I've had with the NSACL, I know this list of recommendations is not exhaustive but it sends a signal, for sure, that stakeholders have major concerns. In addition to those, some of my concerns are that as we move away from the all-or-nothing approach, more towards a continuum, the bill doesn't insure the necessary supports will be in place to allow those striving for independence to move along that continuum. So, we have heard, you know, I think from the minister tonight and at other times, that that's a very common scenario. So, if we're dealing with someone, for instance, who may have had a traumatic brain injury, you know, those are things from which someone can in fact improve; we want to help people improve. I think that that's underlying all of this, is that we want to help people live their lives to the fullest capacity and we don't see that embodied in this language.
Like the member for Pictou West, I'm also concerned about the provisions regarding the transition away from existing guardianship orders. This is really key, because this bill grandfathers existing guardianship orders and then says that they will be reviewed at the request of the guardian. If you're paying attention to the power dynamics present here, that simply doesn't make any sense. So, we're moving from a model which, just for the record, has been declared unconstitutional - we've struck down the law - but we're taking those orders that existed under that Act that is unconstitutional, and just slipping them into this new Act and saying, oh, no, they're okay now unless the people with the power decide that maybe there's a problem and then they'll come and review it. That's deeply problematic and I suggest that we may end up back in the courts again.
The government's process for developing this bill seems eerily similar to the initial accessibility bill, as I said at the beginning, which the government had to withdraw. Like that process, this one started with government doing some initial consultation before drafting the bill in isolation. Now that this bill has been drafted and introduced to the House, stakeholders are once again scrambling to respond. I am concerned that unlike the accessibility bill, which was initially withdrawn, the government will continue to move forward with this bill to meet the requirements of the court to have the new legislation in place within the time.
That's why I think this legislative process, which includes the ability of the Opposition to put forward amendments and the power of government to make amendments, is so important. So, I would echo the comments of the member for Pictou West, and say we look forward to Law Amendments. We look forward to government listening to stakeholders and ensuring that this law - again the spirit of which, I think, is absolutely in the right place and the right direction - in fact embodies that spirit and serves the people who will be subject to it.
So with that, I look forward to the feedback that will be provided at Law Amendments Committee and reported back on the third reading.
Published by Order of the Legislature by Hansard Reporting Services and printed by the Queen's Printer.
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