Envisioning the Elephant

Our Act sets out the Province’s own aspiration for human rights in a statement of the purpose. The purpose of the Act is to recognize the inherent dignity and the equal and inalienable rights of all members of the human family, to recognize that human rights must be protected by the rule of law, and to recognize that the government and all public agencies have the responsibility to ensure that every individual in the Province is afforded an equal opportunity to enjoy a full and productive life. These purposes have informed my decision. It may, however, cost tens of millions a year to fulfill these aspirations for the disabled. That is for the next phase of this proceeding, but I finish this first step with a caution; one should not be glib about what witness Wendy Lill described as the elephant in the room during the Roadmap discussions of services for the disabled - cost.

Walter Thompson, QC

Human Rights Decision 2019

So, oft in theologic wars
The disputants, I ween,
Rail on in utter ignorance
Of what each other mean;
And prate about an Elephant
Not one of them has seen!

Blind Men and the Elephant - John Godfrey Saxe (1816-1887)

I'm no economist, but I have expectations that government, having read their own Human Rights Act, will take steps to ensure that every individual in the Province is afforded an equal opportunity to enjoy a full and productive life.  Government has no higher calling.  They have an obligation to examine the elephant from every angle.

One person can get rich by Chasing the Ace, but anyone can get comfortable by working hard, saving money and being thrifty.  In Nova Scotia, we live beyond our means and are prisoners of conventional thinking.  We see people with disabilities as a mystery and a liability, when they should be neighbours and assets.  It's easy to raise the specter of the elephant, but the elephant is a hallucination, a bogeyman, a creature of failed imagination, born from acceptance of inequality and intellectual laziness.

Let's examine costs - Thompson's elephant - through an accessibility lens, not accessibility through a cost lens.  Putting people to work, valuing them as part of the community, treating them as assets, not liabilities, fashioning a Nova Scotia solution to a Nova Scotia problem - that's where our priorities should be.  

Here are ten ways to rethink our approach  to disability: (ten year returns in red - rough guess)

• Allow people to work
• There are 7,243 Nova Scotians in the Disability Support program of the Department of Community Services.  That program costs $333 million.  Moving one person from dependence to employment means saving $46,021.  People with jobs pay taxes - even a minimum wage earner pays $894 provincial income tax, so getting a person a job saves the province $47,000/year.  Forever.
• It's a tough problem.  DCS rules make it hard to become un-disabled.  We need to show a better way.
• If DCS moved one percent of its "clients" into the workplace, taxpayers would save $3.4 million a year.
• $34 million for 1% of "clients"
• Help them get their RDSP
• Many of those 7,243 people have not filed for their Registered Disability Savings Program.  These unclaimed federal grants easily top $50 million
• $50 million + $50 mullion
• Stop the Access-a-Bus approach
• Don't accept second best for some of your neighbors.  Whether it's an inferior transportation system or unequal application of public health standards, taxpayers pay the bill.  Access-a-Bus costs HRM $6 million per year.  Lax public health standards mean expensive hospital visits.
• $22 x 110,000 trips x 10 years = $24.2 million 
• Stop institutionalizing people
• As shown in the recent Emerald Hall Human Rights case, the province spends $180,000 per year to incarcerate people because it can't find $60,000 to house them in the community.
• $1.2 million/person 
• Count people properly.  
• Both the province and Dalhousie take a census of employees through a self identification process fraught with perverse incentives and subtle judgements:
• For the purposes of this survey, persons with a disability are people who have a long term or recurring physical, sensory, mental, psychiatric or learning impairment and includes people whose functional limitations due to their impairment have been accommodated in their current job or workplace (e.g., by the use of technical aids, changes to equipment or other working arrangements) - 
• Dalhousie
• Impairment is is a nasty word - a judgement.  Many people think their conditions are gifts.  Condition is a better word.  But conditions only become disabilities when they meet obstacles.  Disabilities reside in the environment, not in the person.  Disabilities are outputs, not inputs.  
• Dal's numbers show an improbable increase of 254% in the number of disabled employees from 2010 to 2017.  377% in students.   They say 8% of law students are disabled.  That would be 40 students, when the number 2 is reliably reported.  This report is an exercise in how to lie with statistics.
• no payoff, just injecting a little truth
• Paper
• Government has at least seven forms, each requiring a medical practitioner's signature, to demonstrate the need for transportation, parking. tax credits, loans, housing and accommodations.  
• 10,000 forms * $50 *10 = $5 million
• Grants and incentives are money makers
• When structured imaginatively, they produce revenue, affect the labour market,  enhance communities and provide other benefits.  Conventionally, they are giveaways for pigs at the trough.
• zero cost
• Pay attention to tourists
• We live next door to a huge concentration of tourists with disabilities, yet our facilities are primitive and spotty.
• unknown, huge potential
• A living wage
• Don't discriminate against people with intellectual disabilities by paying sub-minimum wage.  It's human trafficking all dressed up.
• the right thing
• Creative use of CEDIFs
• We must allow people with disabilities to participate in the economic life of the province.  Problems such as affordable housing, transportation, and end of life care should be made better by encouraging savings and ownership.  CEDIFs may be the vehicle.

So 75 job placements, one less incarceration, support for a faltering taxi industry and a single form nets $164 million over ten years.  Just a drop in the bucket, but a seismic shift in approach.  People become investments, not burdens.  Government is an enabler, not a caretaker.  Individuals are independent and self-reliant.  That shift in priorities will benefit all Nova Scotians and lead to a more prosperous and equal province.

Gus Reed

3 X 100 X 180,000 = 0

These are the years and the walls of the ward, 

the winds and clouds of the sea of board

sailed by the sailor 

wearing the watch 

that tells the time  

of the cranky man  

that lies in the house of Bedlam.

Elizabeth Bishop

Visits to St. Elizabeths

Bishops's mother was institutionalized at the Nova Scotia Hospital in Dartmouth in June 1916

If you don't see a chart above, click the title to view in your browser.

I've been trying to make sense of the recent Human Rights decision in the case of three people cruelly confined in Nova Scotia institutions.  It's long (108 pages), sometimes exasperating, puzzling, revealing, inappropriate.  For now, I think it's a setback for disabled Nova Scotians and does, like Parker Donham says, abandon hundreds to a veritable Gulag.

It would be impossible to address every issue and keep your attention, so I plead guilty in advance to cherry-picking sections that struck me as particularly wrongheaded.

I don't know anything about Walter Thompson except that he writes well and at length and is the spitting image of the doctor who delivered me 70 years ago.  I think the way to go about this is to pick out some quotes that strike me one way or another.  Starting with the decision in blue and my response in dark.

I.

I am satisfied that the Province of Nova Scotia, on the facts and law as presented to me, withheld or limited access to benefits the Province provides to disabled people and prima facie has discriminated against Beth MacLean, Sheila Livingstone and Joey Delaney in the provision of or access to services or facilities on account of mental and physical disability contrary to section 5(1)(a) of the Nova Scotia Human Rights Act. 

I am not persuaded, however, that the Province has prima facie discriminated against disabled people who reside in “institutions” generally or who are on a waitlist for placement in a community living service such as “Independent Living Support” or a small options home. No general rule may be applied to what, depending on the circumstances, may be an “advantage” or a “disadvantage”.  (page 1)

I'm puzzled that Thompson only compares the three complainants to others receiving  benefits the Province provides to disabled people.  That's like only comparing women's salaries to the salaries of other women, or the hiring of an African Nova Scotian to the hiring of other African Nova Scotians.  "She is paid less, but not less than other women who are paid less".  Isn't the correct comparison to all Nova Scotians?  Since other Nova Scotians are never confronted with "institutionalization" as a government service, I think the point is fantasy and the Province has prima facie discriminated against disabled people who reside in “institutions” generally.

The Disability Rights Coalition made the argument well: "The provision of social services to “persons in need” discriminates between the disabled and the non-disabled by enabling the latter, but frequently not the former, to live in the community. "

II.

I expect that the Province might then argue that the Province should be excepted from a full finding of discrimination because of the multiple responsibilities of government to all its people, because of its rights to set priorities and dispense the public purse, because of the fiscal realities of a relatively poor province and because of the progress the Province is making to better take care of the disabled. (page 2)

Don't get me started!  Thompson posits that the best defense to a charge of discrimination is the necessity to discriminate.  The Province is not a person, it has obligations, not rights.

III.

 I do, however, feel obliged to resist Dr. Frazee’s evidence of an “ableist” systemic prejudice analogous to racism or sexism. If I am speaking from a position of privilege and am “un-woke”, then so be it. (page 60)

No better example of ableism exists than the sainted Dean Richard Weldon of Dalhousie Law School who said of James McGregor Stewart "Serious physical defects should be considered as rendering a candidate ineligible for the Rhodes Scholarship."  Unless it's Donald J. Trump making fun of a reporter with a movement disorder or students in Cape Breton making their classmate lie down in a brook.  Or the Restaurant Association of Nova Scotia saying in a Human Rights submission "In our sector when we refer to the term “public” we are speaking about the general good for the largest number of people. This unfortunately does not include all people. There are many that we can’t serve for a variety of reasons, including; certain disabilities, people with various allergies, and some because there is an older building structure that can’t be renovated without substantial investment." 
Or the government of Nova Scotia selectively enforcing regulations when they would be inconvenient when applied to wheelchair users.  And on and on and on and on and on.

IV.

Much of Mr. Delaney’s  distress relates to his bowels. He is chronically constipated and afflicted with gas. Staff have to deal with his need to defecate, to assist him with the process and to clean him afterwards. (page 22)

There's way too much detail about the physical health of the complainants.  Is  this relevant?   Page after page, as if it was the justification for locking people away.  This would never be revealed in a FOIPOP.  Perhaps there is some exception for Human Rights decisions, but it falls within the category of de-humanizing people with disabilities.  We're talking about institutional failure, not the particularities of personal health.

V.

Ms Lill says disabled people and their families developed a huge amount of distrust and cynicism because of the difficulties faced in care and the difficulties in obtaining supports. She was asked whether cost was a consideration in placing people. She said that it was the unacknowledged elephant in the room in the Roadmap discussions. All were aware that any change in the paradigm would require money. There were also issues around bringing families to accept change and around the loss of the jobs involved in operating institutions. (page 29)

I am personally familiar with this argument.  A change in the paradigm would require money.   The Roadmap sets out principles and goals.  It has some sensible suggestions for cost containment and additional revenues (like employing people instead of warehousing them)  As far as I know. the finance gurus have never worked through any alternatives.  They raise the specter of mass loss of jobs, implying that people with disabilities would be at fault.  Blame the victim.

VI.

The following is a breakdown of the various service options and numbers of people using each service in fiscal 2016 — 2017:  (page 70)

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PROGRAM	PARTICI-PANTS	COST
Direct Family support for children	676	$31,110,186
Flex Individualized Fundiong	1402	$64,521,422
Adult Service Centers (day programs)	2000	$92,041,972
Alternative Family Suupport	167	$7,685,505
Independent Living Support	741	$34,101,550
Small Options Homes	695	$31,984,585
Group Homes	583	$26,830,235
Residential Care Facilities	424	$19,512,898
Adult Residential Centres	370	$17,027,765
Regional Rehabilitation Centres	185	$8,513,882
TOTAL	7243	$333,330,000

I've been asking for ten years but I've never seen these numbers.  The cost column was added by me.  As you can see, the $333 million program has 7,243 participants.  The average annual cost is $46,021 per individual.  I think this does NOT include administrative overhead.  In the budget detail, the $333 million appears to be a pot of money paid directly to third parties.  Thinking outside the box, there are opportunities for wealth accumulation (RDSP), independence (self administration), property ownership (co-ops, CEDEFs) and economic participation.  Taxpayers support individuals with disabilities at $46,021/year and the government can't bother to be creative.

VII

Staff hear of general waitlists of five or even 10 years.  (page 47)

The Complainants’ submission boils down to the argument that waitlists are prima facie discriminatory. I disagree. Some services can be rolled out as a matter of routine to people in general. Others will be more complex and will require a work up. Each disabled person will have to be assessed individually and a placement worked out with them for a placement that best suits their needs. I accept that finding an appropriate place for a disabled person may take time. (page 97)

In any event, and more importantly, the relationship between waitlists and discrimination is, in my view, to be determined individually on the basis of meaningful access as prescribed by Moore. The rule is meaningful access and meaningful access can only be determined in the individual case. (page 98)

there are some 1,100 people living in large, congregate care facilities and nearly 1,000 people are on waitlists for services as offered by the SPD program.  (page 71)

From The New Yorker 

Thompson mentions waitlists 44 times.  A waitlist of 1,000 names, growing, a half-decade cycle is merely a device to give the appearance of activity.  It isn't real, people certainly die while waiting, yet Thompson considers it legitimate.  It's used as a convenient way to kick the can down the road.

I think I'll stop for now.

My impression is that the situation of people with disabilities has been set back.  Thompson is not unsympathetic to the three complainants but his concern did not extend to awarding compensation.  The two-stage process Thompson proposes may be based on some legal nicety, but it is a distinction without a difference.  Thompson is unwilling or unable to imagine that another approach is achievable and concludes, as the un-woke always do, with a reference to cost.

Familiar?

An excerpt from Alice, a fun book about an un-fun situation.  Cheap on Amazon:

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Paul Vienneau and the Carpenter

‘The sun was shining on the decks,

Shining with all her might:

She did her very best to make

The patio level and bright

And this was odd, because it was

Behind a set of steps

Paul Vienneau and a Carpenter

Were wheeling ‘neath the lamps;

They wept like anything to see

Such paucity of ramps

“If this were only better planned,”

 They said, “we’d be access champs!”

“If seven men with seven drills

Worked for fifty nights,

Do you suppose,” Paul Vienneau said,

“That they could get it right?”

“I doubt it,” said the Carpenter,

That’s certainly our plight.

 “O Council, come and wheel with us!”

 Paul Vienneau did beseech.

“A pleasant wheel, a pleasant talk,

A chance for us to teach

We cannot do with more than four,

To give a hand to each.”

The CAO looked at him.

But never a word he said:

The CAO winked his eye,

And shook his heavy head—

Meaning to say he did not choose

To leave his comfy bed..

But four young councilors hurried up,

All eager for the treat:

Their coats were brushed, their faces washed,

Their shoes were clean and neat—

And this was no surprise , because, you know,

They seldom left their seat.

Four other Councilors followed them,

And yet another four;

And thick and fast they came at last,

And more, and more, and more—

All hopping through the dirty path,

And scrambling to the fore.

Paul Vienneau and the Carpenter

Wheeled on a mile or so,

And then they rested by a rock

Conveniently low:

And all the little Councilors stood

And waited in a row.

“The time has come,” Paul Vienneau said,

“To talk of many things:

Of ramps—and doors—and steepest slopes—

Of washrooms and commodes—

And why the curb cuts are so bad—

And whither building codes.”

“Just wait a sec,” the Councilors cried,

“Before we have our chat;

Grandfather rules the access game

and with business we side!”

“We know it well!” said the Carpenter.

"There is no thanks for that."

“To wash my hands,” Paul Vienneau said,

“Is what I chiefly need:

Some privacy besides

Is very good indeed—

Now if you’re ready Councilors dear,

Our views begin to heed.”

“It’s not on us!” the Councilors cried,

Turning a little blue,

“After our hard work, that would be

A dismal thing to do!”

“I rest my case ,” Paul Vienneau said

“You haven’t got a clue!”

“It was so kind of you to come!

And you are very nice!”

The Carpenter said nothing but

“The washroom’s full of mice:

I wish you were not so obtuse—

I’ve had to ask you twice!”

“It seems a shame,” Paul Vienneau said,

“To play them such a trick,

After we’ve brought them out so far,

And made them trot so quick!”

The Carpenter said nothing but

“These people are so thick!”

“I weep for you,” Paul Vienneau said.

“I deeply sympathize.”

But really now, we pay our tax

And it’s agreed we get little back

Few jobs, not much respect,

Lip service, we surmise.

“O Councilors,” said the Carpenter.

“You’ve had a pleasant run!

Shall we be trotting home again?”

 But answer came there none—

And that was scarcely odd, because

They’d been outvoted, every one