Fighting for Deinstitutionalization in Nova Scotia: Emerald Hall Human Rights Case

Those who have not been following the human rights complaint, MacLean v Nova Scotia, should start paying attention now. The case will be heard at the Nova Scotia Court of Appeal in November. People First Canada, CACL and the Council of Canadians with Disabilities will intervene. At stake is whether institutionalization counts as discrimination - and what, if anything, human rights can do to respond. Beth MacLean, Joey Delaney and Sheila Livingstone, all persons labeled with intellectual disabilities, brought the complaint to the Nova Scotia human rights commission in 2014. The Disability Rights Coalition [DRC] joined in the complaint. MacLean, Delaney and Livingstone each lived for many years in a locked hospital ward reserved for people labeled with intellectual and mental health disabilities (Emerald Hall). MacLean lived there for over 15 years, the others for about a decade. MacLean testified to the human rights tribunal last year that Emerald Hall was a noisy, chaotic, highly distressing place. She hated it and wanted to leave. There was no medical reason for her to stay. But she, like Delaney and Livingstone, hadn\u27t the funds to purchase community living supports. And the province\u27s disability support program offered them no alternatives

Agonizing Identity in Mental Health Law and Policy (Part I)

In this two-part paper, the author explores the significance of identity in mental health law and policy In this as in other socio-legal domains, identity functions to consolidate dissent as well as to effect social control. The author asks: where do legal experts stand in relation to the identity categories that run so deep in this area oflaw and policy? More broadly, she asks: is mentalhealth working on uson the mental health disabled, legal scholars, all of us-in ways that are impairing our capacity for socialjustice? In the first part of the paper, the author considers the Foucauldian exhortation to undertake a critical ontology of ourselves and asks what it would mean to take this curious exhortation personally, with regard to one\u27s mental health. In the second part, which will appear in the next issue of the Dalhousie Law Journal, she builds out from these insights toward a political taxonomy of mental health identities

Critical Pathways to Disability Decarceration: Reading Liat Ben-Moshe and Linda Steele

I consider how Liat Ben-Moshe’s Decarcerating Disability and Linda Steele’s Disability, Criminal Justice and Law: Reconsidering Court Diversion contribute to emerging conversations between critical disability studies and anti-carceral studies, and between disability deinstitutionalization and prison abolitionism. I ask: what if any role might law, or specifically rights-based litigation, play in resisting carceral state strategies and redirecting material and conceptual resources toward supports for diverse forms of flourishing? I centre my remarks on the special relevance of Ben-Moshe’s and Steele’s books to social movement activism in Atlantic Canada and critical reappraisal of Canada’s solitary confinement litigation

\u3ci\u3eAdult Capacity and Decision Making Act\u3c/i\u3e Review

The Adult Capacity and Decision-making Act is for adults who can’t make some or all decisions for themselves because of a learning disability, mental illness, brain injury or other reasons. This law respects the rights of adults to make their own decisions, while allowing someone else to help make important decisions for them when they can’t. You can read the results of the review in the Report on the Review of the Adult Capacity and Decision-making Act. In 2021, government consulted with Nova Scotians about the Adult Capacity and Decision-making Act. The results of the consultation informed the review. You can read the results of the public consultation in the What We Heard report. Government is reviewing the recommendations in the Report on the Review of the Adult Capacity and Decision-making Act and will keep Nova Scotians updated about next steps. We want to thank everyone who shared their thoughts and experiences during the review

Consent to Psychiatric Treatment: From Insight (into Illness) to Incite (a Riot)

The aim of this chapter is to go back to the basics on consent to treatment, starting with the right to refuse and building from there. Part II addresses the leading judicial statements on the value of medical self-determination, and in light of these statements, considers what is at stake in psychiatric treatment choice. Part III explores the three core elements of valid consent to treatment -- namely that consent be voluntary, informed and capable -- with attention to variation in the law amongst provinces and territories, and some lines of analysis and critique specifically applicable to mental health care contexts. Part IV considers new directions in law and policy clustering around the concept of supported decision-making – a concept forged through domestic and international disability rights advocacy, which urges fundamental re-examination of the interrelationship of legal capacity, autonomy and distributive justice

Agonizing Identity in Mental Health Law and Policy (Part II): A Political Taxonomy of Psychiatric Subjectification

This is the second part of a two-part essay exploring the function of identity in mental health law and policy or more broadly the function of identity in the politics of mental health. Part one began with the Foucauldian exhortation to undertake a criticalontology ofourselves, and adopted the methodology of autoethnography to explore the construction or constructedness of the authors identity as an expert working in the area of mental health law and policy. That part concluded with a gesture of resistance to identification on one or the other side of the mental health/ illness divide (the divide of reason and madness), affirming instead an aspiration to carve out a space of contemplation-or rather multiple spaces: fleeting, episodic manifestations of what the author terms spectral identity -supportive of reflection on the relational determinants of one\u27s position along a continuum of shared vulnerabilities and capacities, shifting over time and across bio-psychosocial settings in defiance of simplistic binary categories. Part two builds out from these insights toward a political taxonomy of mental health identities. As such it deepens its engagement with the core question raised in part one: namely is mentalhealth working on us-on the mental health disabled, legal scholars, all of us-in ways that are impairing our capacity for social justice

Critical Pathways to Disability Decarceration: Reading Liat Ben-Moshe and Linda Steele

I consider how Liat Ben-Moshe’s Decarcerating Disability and Linda Steele’s Disability, Criminal Justice and Law: Reconsidering Court Diversion contribute to emerging conversations between critical disability studies and anti-carceral studies, and between disability deinstitutionalization and prison abolitionism. I ask: what if any role might law, or specifically rights-based litigation, play in resisting carceral state strategies and redirecting material and conceptual resources toward supports for diverse forms of flourishing? I centre my remarks on the special relevance of Ben-Moshe’s and Steele’s books to social movement activism in Atlantic Canada and critical reappraisal of Canada’s solitary confinement litigation

Introduction to Julie Bilotta’s Story

Julie Bilotta’s contribution to this special volume is a straightforward denunciation of prison-based inhumanity and institutionalized misogyny. I write to show solidarity with her and to alert the reader to some of the ways her story exposes intersectional injustice while enlivening feminist abolitionist prison resistance. I write, too, to challenge my own and others’ thinking about whether or how law (litigation, law reform) might contribute to that resistance. In her essay, Julie offers an intimate glimpse of prisons as sites of reproductive injustice. As this special volume attests, incarceration in Canada and elsewhere produces systematic gendered harms, including lack of access to contraception, abortion and other reproductive health care; coerced sterilization; infant apprehension; and repeated and sustained rupturing of family relationships (Paynter et al., 2022; Evans, 2021). While there is a dearth of disaggregated data, the demographics of incarceration and patterns of securitization within prisons suggest that in Canada these harms fall disproportionately on Indigenous and Black women (Wortley, 2021). Julie describes actions and inaction of jail staff in response to her experience of labour and childbirth that illustrate just how radically the paramilitary ethos of prisons and jails alienates those in authority from their humanity and substitutes punishing logics of risk and securitization. In Julie’s case this produced world-destroying pain, grief, and rage. It also opened new possibilities for feminist solidarity and advocacy

Freedom: A Work in Progress

Rusi Stanev, survivor of an intransigent system of guardianship and institutionalisation, victor in a ground breaking disability rights case against Bulgaria at the European Court of Human Rights, my partner in this writing project and (for too short a time) my friend, died on March 9, 2017, before our chapter could be completed. He was 61. Questions have been raised about the appropriateness of the care Rusi received in his final days; at the time of finalising this chapter, a formal inquest into the circumstances of his death had not issued in a decision. But whether or not Rusi Stanev’s death is proven to be connected to specific failings on the part of one or more state-backed authorities, it cannot in any straightforward sense be attributed to “natural causes”. This chapter celebrates, and mourns, Rusi Kosev Stanev’s remarkable life: his rising up despite and against the profound forms of subordination to which he was subjected. It is composed of fragments of Rusi’s writing that he produced through the VOICES project, including in the last weeks before his death, and Sheila’s responses to those fragments. Its subject – our subject -- is Rusi Stanev’s unfinished project: freedom

Judicial Discipline through the Prism of Public Law Values: A Critical Analysis of Bill C-9, An Act to Reform the Judges Act

Bill C-9 is the first legislative reform to the Judges Act in five decades. The goal of the legislation is to enhance public confidence in the administration of justice by modernizing the complaints and discipline system for federally appointed judges. In a previous essay published in Volume ?? of the Advocates’ Quarterly we offered a normative framework for assessment of a complaints and discipline system and identified seven key strengths of Bill C-9. In this sequel, we continue to apply this normative framework and argue that the legislation is marred by five significant weaknesses. We conclude that because the reforms were driven by crisis thinking they over-emphasized two values – independence and efficiency – at the expense of several other equally significant values, including impartiality, transparency, accountability, participation, representation and responsive justification. Consequently, Bill C-9 will likely fail as an attempt to enhance public confidence in the administration of justice