SRLs with Disabilities: Dealing with a Double Whammy

One of the most eye-opening aspects of working on self-representation and Access to Justice is the way that the different needs of different groups are increasingly revealed to us.

The crisis in affordable legal services affects the majority of our community. So it is unsurprising that particular interests and challenges that are associated with distinct demographics keep appearing.

Members of these groups challenge us to consider their specific obstacles to and requirements for Access to Justice, if they are to feel confident that the legal system will serve and include them. Examples include First Nations Canadians, senior citizens, and people with disabilities.

Some days, I confess, this feels a little overwhelming. We urgently need, but do not yet have, empirical research showing how these and other groups are being uniquely affected by the crisis in affordable legal services. NSRLP does not have the resources to conduct all these different research projects. Sometimes it feels like we are flailing around in the dark, trying to figure out what would be most useful. We are taking the advice of people in these communities – and in their advocacy organizations – as much as possible.

But we had to begin somewhere. So we did.

NSRLP & SRLs with Disabilities

In the past 12 months NSRLP has heard increasingly often from people with disabilities (PWDs) about their Access to Justice challenges. There can be no doubt that SRLs who are also PWDs are dealing with a double whammy – navigating the justice system alone AND doing so with a disability.

The individuals we have heard from describe to us the additional (practical and psychological) obstacles they face in representing themselves without counsel. Or, as I have learned to frame it, facing the societal barriers that label them as “disabled” and prevent them from participating fully in the justice system.

Sound the same? Not quite. The difference lies in how much responsibility we take as a society to allow for any person’s participation, and not assuming that what works for us, works for everyone else – like walking up the courthouse steps, or sitting through a two-hour hearing without a break, or enhanced audio, or interpretive services.

For individuals with impairments that are not visible – like Judy Gayton, a brain injury survivor – the issues are further complicated by assumptions sometimes made about them by lawyers, judges and others working in the courts. Or as we know some judges have told SRLs with cognitive disabilities, “You look fine to me”.

This lack of curiosity – and perhaps the misguided assumption that this individual is trying to get some undeserved special treatment – can blind decision-makers to the travesty of justice that occurs when a person with such challenges is denied accommodations.

I got curious about a year ago. I realized that I had never really thought hard about the challenges faced by someone with a physical or cognitive impairment using the legal system. To be honest, I have not spent much time thinking about what it means to live with a disability, period. Cancer aside, I am lucky to have a well-functioning body.

I have a lot more to learn – as always, once you begin to learn about something you never thought about before, you realize how much more there is to know (and how ignorant you were before). But here is what I have learned so far from some remarkable individuals.

Five Lessons from Listening to PWDs

1. Relying on what we can see is not enough. Our culture is very focused on what we can see and consequently, on visible difference. What we see equals what we know, and what we think. It’s hardwired into us. But it’s not enough information – you cannot see a cognitive disability – and sometimes this habit distracts us from deeper inquiry.
2. Don’t assume you know what it feels like to be a PWD or what their real needs are.

Asking and listening usually means hearing about difficulties that have not occurred to you if you are an able-bodied person. For example: the need for frequent breaks in proceedings or meetings for medical, psychological or cognitive reasons; the reality that some days will simply be “bad days” on which decision-making or appearances are not possible; the importance of a courtroom companion to take notes at a hearing (perhaps as a McKenzie Friend).

3. Realize that anyone with a disability has already suffered for years the frustration of trying to educate others about their disability. At best they will be skeptical about A2J and at worst, already angry.

Imagine what you might have felt like if you were Elizabeth Portman, who won a first level discrimination case against the NWT arguing that disability should be taken into account in legal aid funding (she just lost the government’s appeal, but the NWT Human Rights Commission is appealing). Elizabeth, who uses a wheelchair, could not even get into the courtroom where her case was being held.

Imagine how you might have felt in Judy Gayton’s position, when she was told that as a person without capacity under the Adult Guardianship Act she could not file any documents in court, yet she was forced to conduct her own trial without representation.

4. Disability rights are basic human rights that we owe to PWDs in Canada, and these include equality rights inside the justice system. Saying that this is a problem “too hard to solve”, as one senior judge told me, is not good enough. Giving a PWD an accommodation that might slightly reduce their disadvantage is not giving them a special favour – it’s trying in some small way to level the playing field.
5. Learning about disabilities, and especially non-visible impairments such as cognitive disabilities and neurological impairments, highlights once again the inadequacies of current legal education and professional support. While we now at least teach some disability law at law school, we do little to train law students to work with clients with disabilities who may be special and challenging in many ways. Neither do we have any systems for offering support to lawyers who do work with these clients.

What NSRLP Has Done So Far

After a year of consultation and work on what might make some small difference to PWDs who are trying to access the justice system, we have some new NSRLP initiatives. Our goal is to empower SRLs with disabilities, as well as raise awareness inside the justice system and among legal professionals.

• This week we are releasing a new Primer for people seeking justice system accommodations for a recognized disability, either physical or cognitive. Joanna Pawlowski, an NSRLP Research Assistant, spent many weeks this summer trying to track down the (often hard-to-find) sources for accommodation information, and registering complaints about failures to accommodate, in every province and territory. These details, including email and phone numbers, are in our latest Primer (please help us keep them up-to-date), as well as a practical legal guide to accommodation requests.
• The third episode of Jumping Off the Ivory Tower featured Judy Gayton, an SRL with a brain injury, speaking about what it’s like to make your way through the justice system with an invisible impairment. It’s an extremely powerful conversation and if you haven’t listened already, I encourage you to do so now (follow the link above).
• Dayna Cornwall, our Project Coordinator, has recorded audio versions of all our Primers – you can check them out here.
• We have introduced an accessibility feature into our website (click the wheelchair icon located at the top-right corner of any page on the site to open up a panel of accessibility options).
• The NSRLP’s SRL Case Law Database Project is presently analyzing accommodation decisions across Canada. This is inevitably an incomplete record, because as some PWDs have pointed out to us, a case report may not refer to a denied accommodation request. (Thus we have to assume that the actual numbers are higher.) We shall have some preliminary results from this project (funded by the Foundation for Legal Research and the Law Foundation of Ontario) to report later this year.

We want to do more – because there is so much to do. If you have ideas or thoughts for us, please get in touch at representingyourself@gmail.com.