Written by Judy Gayton, former self-represented litigant. Judy is just one of many individuals who was denied access to justice – a fair trial – because the Legal Aid assessment of her need did not take into account her brain injuries, which made representing herself extraordinarily difficult, and under the circumstances, impossible. The equivalent to a Jordan’s Principle for this historically marginalized and ignored group would be called “the Gayton Principle.”
People with disabilities, both physical and cognitive, are currently discriminated against in the Legal Aid system because they are not offered substantive – or actual – equality.
This is because the nature of their disabilities, and their impact on their ability to represent themselves in the absence of publicly funded counsel, is not taken into account in assessing their eligibility for Legal Aid. Instead, they are subject to the same eligibility criteria as those without disabilities.
This is a de facto breach of Jordan’s Principle. In 2007 the House of Commons passed a private members Motion establishing Jordan’s Principle, recognizing that Indigenous children have suffered historical disadvantage and must be able to access all public services when they need them. A 2016 Canadian Human Rights Tribunal decision – the first of a series finding the government in breach of Jordan’s Principle – clarified that this principle applies to Indigenous children living on or off reserve. It says that in order to achieve “true equality in outcomes” (and not just “formal equality”) the individual circumstances of each child and their particular needs must be taken into account. This is known as “substantive equality.”
Substantive equality is a human rights concept that weighs factors such as existing discrimination, marginalization, and unequal distribution of resources when considering policies and evaluating outcomes.
This means that for these children, it is recognized that additional services may be required to achieve substantive equality, and therefore these services must be funded. The Government of Canada describes it as, “…giving extra help when it is needed so all people have an equal chance to thrive.”
People with disabilities applying for Legal Aid should be afforded the same protection and recognition, since they are also a group that requires more than formal equality (for example financial eligibility) for Legal Aid. Recognition of the impact of cognitive disability on ability to self-represent is critical to achieving substantive equality in access to justice for this group, who have been historically disadvantaged.
Without expert assistance, people with cognitive disabilities will not be able to meaningfully access justice. The Supreme Court of Canada in the Pintea decision stated the duty of the presiding judge to be to ensure that those without expert assistance could nonetheless “meaningfully participate” in a fair trial.
For individuals with brain injuries, cognitive impairments, and other “invisible” but significant cognitive disabilities, this requires more than the provision of a McKenzie Friend (who is not a legal advisor and cannot address the Court).
Removing capacity from an individual with a cognitive disability but then not providing counsel to file and act for them is simply marginalizing this group still further.
As it did in Jordan’s Principle, the House of Commons could pass a Motion similar to Bill-296, in this case with the aim that persons with cognitive disabilities can access public services in a way that is reflective of and meaningful to their individual needs, emphasizing substantive equality, and ensuring that they are not unjustly hindered by denial, delay, or disruption of services.
Legal Aid is a social service in Canada and, not withstanding its independent corporate status, is funded by the government, and is sufficiently controlled by the government to be a government actor subject to the Canadian Charter of Rights and Freedoms, just as hospitals and medical care were deemed to be in Eldridge. As a result, Legal Aid bodies across Canada must act in a way that is consistent with the values of the Charter.
If all the facts and supporting jurisprudence were considered, the Canadian Human Rights Tribunal would conclude that both the federal and provincial governments have failed to properly fund Legal Aid, and in so doing failed to ensure the right to substantive equality and the right to fair trials for persons with disabilities in civil and human rights matters, which is a discriminatory violation of section 15 of the Charter.
Just as Jordan’s Principle applies equally to all children on and off reserves in need of support, The Gayton Principle would apply to persons with cognitive disabilities before a Court of Law or Tribunal requiring appropriate social services. And as it did in Jordan, the Human Rights Tribunal could exercise its authority to order the federal government to immediately stop applying a discriminatory policy.
…
NSLP’s new report, Struggling for Accommodation: Barriers to Accessibility faced by Cognitively Disabled SRLs is available here. This report (released November 15, 2021) examines the experiences of cognitively disabled self-represented litigants (SRLs) who have requested accommodations for their cognitive disabilities.
Legal aid is desperately underfunded, and many people suffer unnecessarily as a result. In my research on civil psychiatric commitment (as an example), I’ve learned that often lawyers with biased, paternalistic views even work against the wishes of their own clients who have disabilities. This is an important topic and I’m glad to see it being investigated and publicly discussed. Thank you!
Rob Wipond
I’m wondering if we could use an empowering term like Equal Access Resources (EAR as in ‘they will now listen’) instead of Legal aid.
Well done, Judy, … and NSRLP.
Many excellent points in this article. Governments need to start funding legal aid properly as far too many people who need it and, in fairness, should get it, fall through the cracks.
This is such an excellent article Judy!
What you wrote “cognitive disability on ability to self-represent is critical to achieving substantive equality in access to justice” that is what our justice system denies those with cognitive and other invisible disabilities.
I’m a person who suffers from variable cognitive abilities, one day I could do a task with ease, other days it’s impossible. I don’t think I’m alone, the variability creates a unique challenge for access to justice. Our current systems lack the flexibility required to give meaningful access to justice.
Substantive is equality is what is absent, our cases seem largely dismissed out of hand and absent criminal charges or confinement, we are left to face a complex system made by lawyers, for lawyers.
Thank you for your ongoing efforts to bring reform, and for meaningfully sharing about the challenges many of us face.
…correct, Barb…you are far from alone…Good to see you are hanging in there and fighting the good fight…Elizabeth (from Twitter)
What continues to be absent from these discussions is the ACTIVE role that insurers like lawpro (insure judges, lawyers, etc) – plays.
Insurers continue to (actively) PROMOTE to judges, lawyers, etc – that PWcD are “difficult” and must be “folded” – excluded from legal / society.
http://www.slaw.ca/2017/05/03/how-scarcity-can-change-us-why-the-justice-system-needs-empathy/
Insurers FINANCE the cost of human rights defendents, but there is no insurance product for the malicious act of discrimination.
These inequities are at the base of this problem – the insurance industry is actively promoting and incentivizing systemic eugenics in the legal sector – and choosing ‘the right’ sort of humans to access fundamental legal help and all services that splinter from this.
LAWPRO is in conflict in oh so many ways and needs to be eliminated and replaced entirely. LAWPRO was originally formed by the Law Society but then moved to “arms-length”, a term that always makes my eyes rolls because it is just an extended conflict of interest designed to mislead the public into believe there is no bias. LAWPRO generates revenue off of fear and in actuality protects lawyers who are assigned a LAWPRO lawyer the minute any red-flags appear regarding potential liability pointing toward one of it’s paying clients, a Law Society lawyer. My thoughts, of course, and opinion only albeit from discussions among our community I believe are not isolated thoughts #allegedly.
It would be interesting to see what data is recorded regarding how much in $$ is paid out to defend lawyers vice how much is paid out in compensation to the public / former clients wronged by a lawyer.
I expect we may see glaring figures supporting irony as we saw in the amazing Anne Rempel’s blog and advocacy on the issue of Law Society complaints processes and outcomes. See these excellent podcasts and blogs by Anne;
https://representingyourselfcanada.com/is-law-society-self-regulation-balanced-a-complainants-analysis/
https://representingyourselfcanada.com/an-accountable-legal-profession/
And by Julie;
https://representingyourselfcanada.com/is-the-law-society-of-ontario-fiddling-while-rome-burns/
The Law Society has been notorious in waving it’s own flag on how great they are and how lucky we-the-public are to have such a vibrant complaints process, an insured industry for pubic safety purposes, and an audit system to file complaints regarding excessive or inappropriate billing; laughable to anyone who has ever attempted to access these patronizing offers, particularly if a PWcD.
Bingo – ok – how now?
Hi Judy, I know it’s been a long, often very difficult road to walk, and I’m very disappointed in the judicial system. The treatment you have faced is disheartening and very disappointing to say the least. Your written article certainly shines light on the disturbing way a human(s) being is treated in the judicial system that is supposed to supply help and protect people in need. I hope ” the Gayton Principle” gains traction and coverage to the point in can’t be stopped. You are loved, take care.
Love this, Judy 🙂 You are amazing xo
Re “expert assistance” – I would add “consistent” “reliable” “uniform” expert assistance rather than piece-meal assistance provided by pro-bono clinics (albeit I am grateful because without them we would have absolutely no help). Being passed from one 3-questions-only 20-minute-only A-difference-lawyer-each-time AND Often-not-practicing-in-the-area-of-law-one-needs pro bono services is more costly than if an assigned / dedicated Legal Navigator practicing in the area of law the clinic-client matter is in, followed each assigned case through to the end.
It is practically impossible to “meaningfully participate” in any way shape or form as a SRL let alone a SLR w/ a PWcD with the expectation of a “fair trial”. The system is labour-intensive without needing to be so and so often biased as the courts simply do not have a grasp on the needs of SRLs and SRL-PWcDs.
I’d like to see a system where Legal Navigators work with us rather than for us. I believe no one knows our case like we do and no one else could have the intuition nor be familiar with the nuances of each individual’s case. This of course could vary depending on individual needs.
The Courts have known for over 15 years what they must do. The Honourable Roy McMurtry affirmed “Eldridge” in his 2006 Ontario Court Report on Accessibility Services…
https://www.ontariocourts.ca/accessible_courts/en/report_courts_disabilities.htm
“Persons with disabilities continue to be significantly disadvantaged in Canada . They encounter many barriers when trying to gain access to the mainstream of Ontario life. In the Supreme Court’s seminal disability equality case, Eldridge v. British Columbia (Attorney General),[5] “
The 2006 “Report” goes on to say:
“An inaccessible court system impacts a significant portion of Ontario’s population. Injured plaintiffs who bring civil claims for their injuries are often persons with disabilities. People with disabilities can be disproportionately represented among crime victims.[7] Under the Charter and the Ontario Human Rights Code, “disability” is defined very broadly and affects a large portion of the population. It is not limited to persons with physical mobility disabilities, such as those using wheelchairs.[8] According to Statistics Canada, 13.5% of Ontarians or 1.5 million people in Ontario now have a physical, mental or sensory disability.[9] Disability can eventually affect everyone, as everyone gets a disability if they live long enough. The same Statistics Canada survey found that 41% of people aged 65 and over have a disability. The overall percentage of persons with disabilities is expected to grow as our population ages.”
So…they already know. It just doesn’t seem to have been implemented….at all…or certainly not as needed.
Great article Judy to expose the inequality and discrimination of persons with disabilities who need Legal Aid representation. It is difficult enough for someone to navigate the legal system on their own and impossible for anyone with a brain injury and/or cognitive disabilities. Proper funding and support need to be addressed and provided by the governments for persons with disabilities to have equal access to justice.
Many self-reps experience “sharp practice” from opposing counsel. Dr. Karin Huffer (US) speaks of how sharp practice can escalate when opposing counsel learns or is aware a self-rep also has a disability, particularly challenging for those with sensory, visual / hearing, or cognitive disabilities.
The Courts, I believe, are in charge and have the authority to discipline such conduct ‘during’ proceedings whereas a Law Society can only consider a complaint regarding lawyer misconduct AFTER proceedings have concluded. I believe there is caselaw in support of the Courts role on this issue but it seems they are either not supportive of this or aware of this.
I understand that in accordance with the Charter and Human Rights Codes, that PWDs/PWcDs are not required to disclose the nature nor details of there disability when it comes to accessibility services. The NSRLP has created an excellent Primer on this issue and how to request Accommodations from the Courts.
What happened to Judy and so many PWcDs across the country is inexcusable, particularly when there are laws already set by Canada’s top Court, the SCC, and by international protocols under the United Nations, which Canada is a member state thus bound by UN protocols and must follow and apply them.
Perhaps we could all forward this blog post to our local MPPs and newspapers to draw attention and support for the Gayton Principle legislative motion. Let’s do away with two-tiered legal services and the gaping divide in the middle-income center and balance the scales of Justice.
We think it would be wonderful if folks forwarded Judy’s excellent post to their MPs and MPPs!
The NSRLP and Judy Gaton have gone down interplanatory rabbit hole in attempting to conflate Jordan’s Principle with the lack of fairness in the justice system. The issue is about fairness and what we have is total denial by politicians and judges as what constitutes fundamental justice.
The issue is “fairness” and Canada contravenes international norms and fails to have any presumption that you cannot have a fair trial without the assistance of counsel in Criminal and child protection matters.
Almost every other country has presumptions that force the state to provide a lawyer and in the USA they are called “public defenders”.
Don’t even mention the dirty words “Legal Aid” which is NOT automatic and is dispensed with political and financial motivations that mean there is no fairness in how legal aid is decided and politicians increasingly limit who is and who is not entitled to legal aid.
Then you have the general pathetic standard of professionalism of lawyers who do legal aid. Its generally high volume low quality work where
the “clients” are treated like dirt because they can’t afford a lawyer.
Canada’s justice system stigmatizes and discriminates against anyone who cannot afford a lawyer and the fundamental cause, the central issue is “denial” because politicians and judges see what they want to see and engage in illegal processes of justification that
is also called “reaction formation”.
I’ve seen some judges listen to charter arguments and rule by the book. Most do not. Most are motivated by political correctness
and make political decisions that go along with the toxic psychopath mentality that dominates Judges Chambers
because our judicial selection system has no common sense or legal accountability.
Thank you for doing this, Judy. I had no idea that people with disabilities were being discriminated against in the Legal Aid system. Your arguments for the Gayton Principle make sense.
This is a fantastic idea not to mention only fair. To do otherwise is inhumane.
This must move forward.
I have a few questions if your comfortable addressing them
1.) Could you share the details of what happened between legal aid and yourself.
What inspired the impetus for this act.?
2.) Could you please describe what the Gayton principles will cover.?
Hello, if it helps, here are some links from our site about Judy’s experiences: Podcast – No Capacity, No Lawyer; Blog about Judy’s experience; Julie Macfarlane speaks with CBC about Judy Gayton case
Here are a few Legislative Assembly Critics you can begin writing to and forward Judy’s blog to:
Ontario:
https://www.ola.org/en/members/current/opposition-critics
TERENCE KERNAGHAN – Critic, Government Services and Consumer protection – https://www.ola.org/en/members/all/terence-kernaghan
GURRATAN SINGH – Critic, Attorney General and Deputy Opposition House Leader Member, Standing Committee on Justice Policy
– https://www.ola.org/en/members/all/gurratan-singh (Jagmeet Singh’s brother. Jagmeet was super active when he was my MPP and spoke directly to the then Attorney General re Family Law Disclosure issues)
Manitoba:
NAHANNI FONTAINE House Leader of the Official Opposition – Critic for Justice
Constituency Office: 1763 Main St, Winnipeg, R3L 2T9 Ph: 204-582-1550 Fx: 204-586-3736
Email: Nahanni.Fontaine@yourmanitoba.ca
BC:
MICHAEL de JONG – Opposition Critic Attorney General 604-870-5486 / 604-870-5444
Alberta:
IRFAN SABIR – Justice Critic – Ph: 403-216-5424 Email: Calgary.McCall@assembly.ab.ca
Quebec:
Marc Tanguay – Critic for Justice, Families, Access to Information and for Electoral Reform
ph. 514-648-1007 fx. 514-648-4559 marc.tanguay-lafo@assnat.qc.ca
There’s are few we could begin with …
NSLRP? How legal is it for us to reply / add email addresses of legal / medical and other stakeholders to this conversation? I must have a list of over 1000 addresses that could help put this in perspective?
Hello, we won’t approve comments with private names/contact information.
Millsy I would love to see that list/those perspectives. Maybe you can email the article to your list, and encourage them to post a comment here, or contact NSRLP to add to the conversation by writing their own article, or even eventually start another resource-database for the public to access.
Thanks for your thoughtful efforts on this Elizabeth!
I’m working on an Affidavit deadline but will put my attention to this ASAP
This may be a little off topic but, for guidance for an action I am contemplating, I am looking to a case that I understand the SCC will be hearing. The B.C. government is appealing the B.C. Court of Appeal decision, Council of Canadians with Disabilities v. British Columbia (Attorney General), 2020 BCCA 241 – https://www.canlii.org/en/bc/bcca/doc/2020/2020bcca241/2020bcca241.html. This is of interest to me because of the issue of public interest standing, which was granted by the BCCA (to an NGO) and which I plan to seek for myself. On that I too expect to be opposed, as the granting of public interest standing to an individual may set another precedent on that issue.
Also, if I am granted standing the court will then be asked to render a judgment extending the reach of the open court principle. Thus far I have been unable to find any lawyer willing to assist me with this, so I will likely be proceeding as an SRL. An SRL bringing forward a case about public interest standing and the open court principle should be a litmus test for the courts’ commitment to access to justice.
Word.
I have an (obsessive – heh) – amount of research / data – if any of it could be helpful?
Shocking stuff.
Thanks to everyone who responded. I’m currently in litigation but speaking with others about supporting this Bill.
I litigated for state funded counsel & lost owing to an erroneous judgement.
The Purpose of the Gayton Principles is to develop test criteria like those that govern Rowbotham, Okanagan or New Brunswick (Minister of Health and Community Services) v. G. (J.) [J.G.] Supreme Court of Canada File No. 26005 to ensure:
1) That PWCD who meet the criteria are provided with Appropriately Skilled Counsel- without which we are set up to lose as I was.
2) That we can enjoy our most basic right to a Fair Trial enshrined to all persons but based on evidence PWCD are largely excluded from.
3) enjoy the right to access public courts.
4) that services be disability informed & eliminate historical disadvantages PWCD face.
5) that seeks to alleviate the administrative burden on PWCD accessing services.
6) that eliminates service denials, delays & disruptions that cause further harm to vulnerable persons in legal crisis.
7) to put meaningful & measurable definitions on the term “Access to Justice” so it highlights the most basic right to a Fair Trial, which PWCD are denied without access to Appropriately Skilled Counsel.