Making it Visible: Inclusion in the Early Years

By Dixie Mitchell

Dixie Mitchell

As we observe National Child Day, November 20th, 2014, it is always good to reflect upon where we have been with regard to inclusion in the early years and where we are now. Reflecting in general upon quality inclusive Early Learning and Child Care always makes me, as a mom, grandmother and educator ask the questions, “Have we done enough to support young children in a way that values their early contributions to society? Have we done enough to support families in a way that values their contributions to society while working, training and extending their education? What do communities need to do in order to value the very foundation that early childhood provides - a time when many children begin to find out what real participation is in any community and to explore ways of being and having a friend?” The early years are a time when foundations for developing inclusion principles and philosophies as an ordinary part of life can begin.

Every child wants mastery, belongingness, independence, friendships and love. Every family wants these things for their children. However, some children spend each day doing without – without success, without belongingness, without independence and without friends. They are labeled, shunned, bullied, and yes, even exploited. Our children are caught many times over in a world that exploits their value and ruins their self-worth and self-confidence, because they cannot fully participate at every level within their community. Accessible, inclusive and quality prior-to-school environments are still not readily available in some communities throughout Canada.

Canada signed on to the United Nations Convention on the Rights of Persons with Disabilities in 2007 and in 2010, it was ratified. The full document looks at environments and how we can change them in order to promote, protect and ensure the rights of people with a disability. It is about environments with true equality.  In signing the Convention, we as Canadians, became obligated to ensure the rights of children; the value of children and to respect the evolving capacities of all children. We committed to preserving the identities of ALL children in order that they can grow with positive self-identities and self-confidence.

The early years are the years to begin ensuring our obligation; ensuring that all children are valued and recognized for who they are, not what they are. It is a time to show that inclusion in the early years needs to be visible in order that all children count - that all children are seen as valuable contributors, because they can and do have contributions to offer.

In order to secure a “world of value,” it will take further changes in creating inclusive cultures and the development of more Early Years policy; more Early Childhood training for our Early Learning and Child Care staff; more accessible quality inclusive places for children in both prior-to-school environments and in school, and a deep understanding that we, as adults, should not be expecting children to, “bend to the community,” but that, “communities need to bend to the child.” In other words, we need not expect children to fit into our adult world, but need to look at the expectations that children can have for themselves if only given time to lead in the dance of learning. Developing effective teaching and learning for all helps children to contribute their gifts.

Early Learning and Child Care has become a time of both care and learning. As Early Childhood educators, we are obligated by Canada’s signature on the Convention to understand our role in standing up for children and their rights; in supporting each and every child to his fullest potential; and in ensuring that inclusion in the early years is fully visible within our communities throughout this great nation. Sitting back thinking that it is someone else’s job will not cut it. Saying, “What can I do to advocate for all children and their families?” and telling anyone who will listen why we are proud to work in the Early Years sector is a great beginning.  Understanding that inclusion is relationship-based - that it takes everyone in a community to support the idea that there is both learning and care in prior-to-school environments - that makes for a worthy foundation for children when entering school. Understanding that children forming relationships with other children and learning to empathize and be sympathetic at early ages brings new hope to the future. Understanding the value of and in children brings hope to children all across Canada.

In celebrating National Child Day, make your first promise – that every day will be a National Child Day, that all children will be celebrated for what they bring to us and for what we learn from them. Promise to recognize and remember why individualization is vitally essential and to recognize that relationship-based inclusion begins in the early years.

Tips for Building a Strong Personalized Learning Plan

By Sherry Jonah, NBACL Inclusive Education Coordinator

August 15, 2014

Sherry Jonah, Inclusive Education
Coordinator, NBACL

If you are a parent, you might be wondering if your child is prepared for the upcoming school year. One way to ensure that your child is set up for success is to ensure the proper supports are in place before the school year begins.

Some students may have a Personalized Learning Plan. The term Personalized Learning Plan (PLP) has replaced the term Special Education Plan (SEP) at the Department of Education and Early Childhood Development. For the purpose of this blog and our work at NBACL, we will use the term Personalized Learning Plan (PLP). The New Brunswick Inclusive Education policy defines a PLP as a plan for a student who requires specific and individual strategies, goals, outcomes and education supports to help ensure student success.

As a parent, you might want to consider a Personalized Learning Plan (PLP) for your child if:

•        Your child is experiencing difficulties over an extended period of time.
•        Your child is not making progress with additional support.
•        Your child requires supports to address his or her behavior challenges.

If you think your child requires a PLP, you can talk with your child’s classroom teacher or resource teacher at his or her school. Following your discussion with your child’s teachers a Psychological Educational Assessment may be recommended if one hasn’t been done already. One purpose of this assessment is to recommend to your child’s teacher appropriate interventions and supports for your son or daughter. Intervention at the school can and should still occur while waiting for an assessment, and may be identified by school staff (for example, the classroom teacher or resource teacher) without a formal assessment

In order to enable your child to learn and achieve, it is important for your child’s teacher and resource teacher to do:

•        On-going monitoring
•        Adjustments

Planning for a PLP

When planning for a PLP as a parent, you play a very important role, because you are your child’s first educator. Parents/guardians should always be consulted when determining whether a PLP is needed and, if so, during the development of a PLP. As a parent, you can provide valuable background information about your child’s history, explain past experiences, and/or share information relevant to your child’s learning needs.

How Do I Know if My Child Needs a PLP?

You may first recognize that your child is struggling at school from some of his or her behaviour at home. Some indicators could be:

•        Your child may want to avoid homework;
•        Your child may want to avoid a certain subject;
•        Your child may spend a large amount of time on homework; and
•        There may be a pattern of behaviours concerning school.

How Do I Help Ensure My Child Achieves Success?

To ensure that your child is successful, his or her PLP should be goal-orientated. You may collaborate with the school on defining the goals. You can also help your son or daughter achieve them by working on them at home. It is also very important to include how each goal will be assessed. This allows you to identify when your son or daughter has reached his or her goals, or if they need more support in specific areas.

It is important that your child’s goals are challenging and focused. They should be reviewed continually and revised as needed. As your child achieves his or her goals, new goals should be created.

PLPs and High School

There are some extra things to keep in mind when it comes to PLPs for high school students. Once your child enters high school, their PLP should also focus on a plan for transition to life after they graduate. In other words, what is your son or daughter going to do after High School and how can we help him or her get there? It is important to begin the transition planning process as soon as possible, but no later than Grade 9. On-going communication with your teen about his or her future plans allows everyone (including you!) to be prepared. 

Transition planning should involve your teen working on job-readiness skills. Many teens might enroll in a co-op education course and may participate in NBACL’s Transition to Work program. There are many options and possibilities! Your teen’s transition plan should be clearly outlined in his or her PLP.

If you are unsure of your child’s progress or confused about the process, schedule a meeting with your child’s classroom teacher and resource teacher. It’s important to express your expectations and show interest in participating in the process. A good PLP is the result of collaboration, consultation and teamwork with everyone involved in the process, including your child.

For more information about successful PLP planning for your child, or about Inclusive Education, contact Sherry Jonah at: 1-506-453-4400, toll free (within Canada) at 1-866-622-2548 or by email sclouston@nbacl.nb.ca.

Top Transition Tips for Your School-aged Child

By Shana Soucy, NBACL Manager of Inclusive Education

The end of the school year is approaching quickly and many parents are starting to wonder “Will my child be ready for the new school year in September?” “What if the new teacher does not know what to do when his routine is broken...”, and, “Is the new school going to be as supportive?” 

June is an important month for parents and school personnel to focus on Transition.  Here are some tips to ensure your child has a successful transition to a new grade/teacher or a new school.

Steps toward a good transition:

1. Find out if there is a transition model in place at the school, if not;
2. Form a comprehensive transition team (with the help of the school).
3. Meet with the team (most parents have transition meetings in the beginning and end of the school year).
4. Plan for the evaluation of the transition goals and strategies (If the strategies do not work for the student, it’s important that there are follow-up meetings to ensure that the student’s transition is as smooth as possible.  Brainstorming new ideas and strategies can be done during these collaborative meetings.).

It’s very important to have a clear agenda of what will be covered during the transition meeting.  For example, if your child has difficulty with routine changes, the meeting should cover different strategies that will be used when his daily routine will be different.  Items that could be covered during a transition meeting could be:

·        Special Education Plan (SEP): What was done this year and what will happen next year;
·        Student’s strengths;
·        Student’s needs (academic, emotional, behavioural, medical, etc.); and
·        Strategies that can help the students with daily challenges.  Some examples include: visual schedules to prepare the student for changes in his or her schedule, to using social stories.

Involve your child.  He/she might not be at the transition meeting but if possible, they can have their say in what they think would help make the transition less stressful.  Bring these ideas to the table at the transition meeting.  Remember, planning for an individual can only be successful if they are on board with it!

If your child is transitioning from elementary to middle school, from middle to high school, or is moving to a different school, you may want to contact the school and schedule a time for the student to visit his/her new school and classroom.  This may lower his/her stress levels by knowing exactly what the school looks like, where his/her classroom, cafeteria and bathrooms are located. 

If the student is anxious about transitions, it could be beneficial for him/her to meet with school personnel with whom he or she will be working with daily (ex: classroom teacher, resource teacher, educational assistant, etc.) the week before classes are in session.  Showing the student where the lockers are located and simple things like where he might sit in the classroom could make a big difference and ensure they have a successful start to a new school year.

Finally, for young children transitioning from an Early Learning Childcare Centre or home environment into kindergarten, it’s important for the parents to arrange a tour of the school with their child.  Some schools are very accommodating and will let the child spend an hour or part of the day in the classroom so that he/she can familiarize him/herself the school and learning environment. 

Parents should inform the school that his/her child has a disability and should ask that a transition meeting be organized to discuss the child’s strengths and needs.  It is usually during this meeting that the parents and school would organize a tour of the school.

Transitions can be difficult for many students, but planning and preparing your child can help them adjust to their new environment and help make their experience more positive. 

Collaborate with the school, attend transition meetings and be sure to involve your child. 

With good planning, you and your child’s educational team can collaborate to create effective ideas and strategies to ensure that everyone is prepared and feels ready to start a new school year!

For more information about successful transition for your child, or about Inclusive Education, contact Shana Soucy at: 1-506-453-4400, toll free (within Canada) at 1-866-622-2548 or email ssoucy@nbacl.nb.ca.

Top Tips for Accessing the Disability Tax Credit

By Rachel Mills, Manager of Family Support & Independent Facilitation, NBACL

For many families who support a son or daughter with a disability, there are added expenses related to meeting the needs of their family member. One way to offset some of these additional costs is through the Government of Canada’s Disability Tax Credit (DTC). If you are found eligible, you can use the DTC to reduce your taxable income, or can be transferred to an eligible family member.

Accessing the DTC can be a challenging and sometimes intimidating process for people with a disability and their families. This blog will focus on providing tips to help individuals and families when applying for the Disability Tax Credit.

Please note this information is not intended as financial or tax advice.

Tip 1: Prepare for your visit to the doctor

In order to be considered for the Disability Tax Credit, you must have Part B of your application form completed by a qualified practitioner. A full list of professionals who are considered qualified practitioners is included with the application form. When calling to making an appointment with your medical professional, advise them of the purpose of your visit. This will allow them time to prepare for your visit, including reviewing any relevant medical documentation on file related to your disability.

Before visiting your medical professional, it can be helpful to spend time identifying and documenting the areas in which your disability impacts your life. Individuals with a disability and their family members experience the impacts of a disability on a daily basis, while a medical professional may only see a patient for a short time every few months. In order to assist your medical professional to complete your DTC application accurately and thoroughly, it can be helpful to provide them with a written letter detailing the areas of your daily life that are impacted, and provide concrete examples.

The quality of responses provided by your medical profession in DTC application plays an important role when your application is being considered for approval. If your doctor is reluctant to complete a DTC application for you, the written examples you provide can help them see the ways in which your disability impacts your daily life. Your doctor’s role is to confirm the extent and impact of your disability.

Eligibility for the DTC will be determined by the Canada Revenue Agency.

Tip 2: Submit your application as soon as possible

If you are just learning about the Disability Tax Credit, don’t delay, apply now! DTC applications can be reviewed at any time of year. It often takes several months for a decision to be made about approval therefore forms should be submitted as soon as they are completed so processing can begin.

Tip 3: If at first you don’t succeed, try again!

A large number of applications for the Disability Tax Credit are initially declined. Just because your application was not approved the first time, does not mean this decision is final. If your application is declined, you will receive a written notice explaining the reason for the decision. You have the option to provide additional information from a qualified practitioner and have your file reviewed again. You also have the right to file a formal objection to appeal the decision within 90 days of receiving written notification.

Tip 4: If approved, have past tax years reassessed

If you are found eligible for the DTC, it is possible to have your income tax reassessed and adjusted for up to 10 years retroactively from date of approval for years that the disability was present. To request assessment of past tax years, applicants must complete form T1-ADJ T1 Adjustment Request which can be access at:  http://www.cra-arc.gc.ca/E/pbg/tf/t1-adj/README.html. A separate form must be completed for each year you wish to have reassessed. This will allow the Canada Revenue Agency to reassess past years and apply the DTC. In some cases, this may result in a rebate being provided to the individual or eligible family member.

In addition to the significant tax savings that can result from accessing the Disability Tax Credit, the DTC also opens doors to other financial savings for people with a disability such as Registered Disability Savings Plans (RDSPs).

The application form to apply for the Disability Tax Credit is called T2201 and can be accessed on the Canada Revenue Agency’s website at: http://www.cra-arc.gc.ca/E/pbg/tf/t2201/README.html.

If you require assistance with completing your Disability Tax Credit application, you can contact Rachel at:1-506-453-4400, or toll free at 1-866-622-2548.

More Time Needed to Fulfill the Rights of Canadian Children with Disabilities

By Dixie Lee Mitchell, Early Childhood Coordinator, NBACL

As we look toward both the National Day of the Child, November 20, 2013 and the annual International Day of Persons with Disabilities, December 3, 2013, one tends to reflect on the changes, or lack thereof, that have occurred in Canadian Communities since Canada agreed to sign the UN Convention on the Rights of the Child in 1989. This Convention was the first international human rights treaty to include explicit focus on disability.

When Canada signed the Convention on the Rights of Persons with Disabilities in 2009, it was thought that a stronger commitment to ensure that children with disabilities to enjoy all human rights and fundamental freedoms on an equal basis with other children would be the foundation of future educational and health policies, funding programs, individual services and supports and protection services for children, to name a few.

Early Learning and Child Care as a Foundation of Equality and Fundamental Freedoms

Despite advances in legislation, policies and services, the rights of children with disabilities are still not being fully realized and the realization of the importance of the early years as a foundation to successful, healthy and fulfilling futures for all children is still not considered the foundation for living a healthy and productive life as an adult.

Despite the lack of legislated entitlement, Canadian early learning and child care programs are including more children with disabilities. There are snippets of innovative programs in every province. The quality and quantity of inclusion has increased significantly and children with “tougher challenges” are now being enrolled everywhere.

At the same time, we are still hearing of children who are excluded from programs; of a parent who must quit work or school to stay home with their child because a program does not have inclusive policies and inclusive training to practice strategies that will continue to include all children. We are still hearing of centres that do not have an “all are welcome” policy and still discriminate against children of varying abilities. We are still working within policies that limit the inclusion of children with disabilities in ways that prevent them from achieving a level of success that will provide them with independent living in their future and separate them from their peers economically and socially. We still live in a country in which every day we “duck tougher challenges” when it comes to the full inclusion and equality of children with disabilities. Many services still rest on the hope of discretionary funds rather than mandated funding and are vulnerable to change each time a government changes.

This evidence of continuing discrimination against children and thus, their families, tends to impact all of us and pressures us to question our societal values and goals. It causes us to reflect on not only what commitments we have made to children with disabilities, but the work yet to be done to ensure continuing Canadian commitments.

Children in early learning and child care usually fall into the age range of 6 months to 12 years. Currently in Canada there are 200,000 children with disabilities under the age of 15. Changes in our economic structure and the roles of families have made early childhood education a fundamental element in our society. The number of preschool and after-school children being cared for in early learning and childcare, who are either assessed with a specific developmental challenge, or whose challenges lead educators and families to seek additional support has climbed dramatically, and yet, in some Canadian communities, there is still failure to recognize the importance of prior to school environments as the foundation years in life long learning.  

In Early Learning and Child Care, educators are beginning to recognize that strengths and challenges for all children exist on a more continuous spectrum than once believed and that only through acknowledging the support and intervention for children prior to school can we hope to give children an equitable “playing field” in school. The cost of intervention and support in the early years is many times viewed as a “high cost ticket,” however the cost to our health system; mental health system; justice system and to educational remediation is much higher.

A commitment to inclusion in the early years fosters a creative, problem solving approach to teaching and offers a model of teaching as a lifetime adventure of personal growth. Challenges are viewed as a source of connection rather than division. Inclusion in the early years can bring a community together and provides benefits for all. We can learn a great deal from very young children on how to do this well as they develop “caring and sharing” habits; as they make friends and become friends to others; as they negotiate within a group where everyone has a “voice”; as they take turns in expressing their views using their own communication style; as they learn about kindness, respect, and yes, even what dignity means. In the early years, children learn to stand up for the person beside them and to help them up when they stumble. In quality inclusive early learning and child care programs, children learn to include naturally - it is a way of being throughout their day.

The zest of life-long learning and its patterns of inclusion are established in Early Childhood Education programs, prior to school classrooms, and in outdoor environments. Research  tells us that children who are included in their early years have better outcomes for inclusion as adults - they are more likely to continue in education, graduate from high school; attend post- secondary education; get a paid job with remuneration above the ‘poverty line’; volunteer in their communities; be valued in their community; and value their community.

It is no secret that early childhood education has been undervalued in our society. However, the growing incidence of children with assessed disabilities and additional needs is not just an education issue. It is one of the major public health concerns of our time. Therefore the amount of energy, time, and resources our society at large devotes to early childhood education should be viewed as being most important.

Taking Action: What We Can Do:

1.       Bridge the divide between education and early childhood development in order that Early Learning and Child Care and other prior to school programs are seen as a foundation to inclusive education in every province.

 
2.       Develop collaborative approaches in both education and health, with disability groups, to ensure non-discrimination in accessing quality health & education supports and services.
 
3.       Design interventions for children that reinforce positive development across their life cycle and across a range of well-being outcomes.
 
4.       Rigorously evaluate policies and programs for children to see whether they enhance the overall well-being and positive development of children.
 
5.        Create programs that support family needs throughout the life span of their children so as to decrease “gaps” in what families require for their children.
 
6.       Continue to bring awareness in local, provincial and federal  jurisdictions - all communities- about quality inclusive, affordable, accessible Early Learning and Child Care. 
 
7.       Form networks and partnerships with community partners to discuss and implement events for action that ensure non-discrimination in the early years that will move forward action for change in inclusive education systems within schools.
 
8.       Value all children and invest in their futures.

Bullying and Students with a Disability

Did you know that students who have a disability are significantly more likely than their peers without disabilities to be bullied during their school years?  They are also at risk of being cyber-bullied if they spend large amounts of time on a computer.

This blog will focus on bullying and students who have an intellectual disability.  It is important to note that many of the students we support may not always be able to tell us if they are being bullied at school.  This is mostly due to the fact that many may not be able to relay the information to us verbally.  The student may also not know that what is happening is actually bullying.

It is very important to deal with this issue as early as possible or to be proactive to prevent it from happening at all.  Students who are bullied are at risk of being depressed, suffer from anxiety and have a lower self-esteem than peers who are not bullied.  They may develop medical issues that may cause them to miss school (stomach aches, headaches, fatigue), and may refuse to go to school and have thoughts of suicide.

Unfortunately, we live in a world where bullying is commonplace.  Bullying occurs every 7 minutes on the playground and every 25 minutes in the classroom.  It is important to educate children on what to do if they are victims of bullying or if they see someone being bullied.  Research shows that most of the time, a bully will stop his/her actions within 10 seconds if a peer intervenes or no audience is encouraging him/her. 

So, what is bullying?  Bullying can be anything from physical to emotional pain being inflicted on another.  This can be seen in the form of punching, teasing, spreading rumours, keeping students out of a certain group, “ganging up” on someone, shoving and more.  The five most common types of bullying according to Stop A Bully is:

• -          Shoving/Hitting
• -          Threats/Intimidation
• -          Spreading Rumours
• -          Cyberbullying

What can we as parents, teachers and support people do when a student we know is a victim of bullying?  It all starts with education.

Educate the student about his/her disability.  The more he/she knows, the better he/she can advocate for

himself/herself.  Education does not stop with the individual.  It is important to educate other students in the classroom and in the school about differences and disabilities.  The more students know, the more empathetic they will be.  Instead of having bystanders looking in on the situation, we will have bystanders who step in and stick up for the child who is being bullied.  One way of doing this is getting the student to present his/her disability to his/her own peers.  If a student is not able to do this himself/herself, a parent or someone close to the student can present on their behalf.  The younger we begin educating students about differences, the more respectful and empathetic they will grow to be.

It’s also important to raise the students’ self-esteem and confidence so they can defend themselves.  We can do this by practicing appropriate responses to different types of bullying.  If the student becomes confident at home, these skills can transfer on to school and to different social situations.

We cannot forget about educating the students who engage in bullying behavior.  They need to understand what impact their actions have on the children they are bullying and understand that there are consequences for their actions.  These students continuously need to be monitored.  ‘Bully,’ a documentary following five students who are victims of bullying, is a great resource to use for students, parents and teachers.  This powerful documentary is accompanied by a book to combat the bullying crisis.

Parents can speak to the school and inform themselves of prevention programs the school has adopted.  If the school has yet to adopt a program, parents may suggest programs to the school (see below for programs).  It is also important for schools to provide a designated person who can be there for the student when he/she feels threatened or is being bullied. 

Other important points to remember:

-          Recognize the signs: Always look for signs that your child is being bullied.  This may not mean bruises; you may notice a change in mood, eating habits and sleeping patterns.  Ask your child if he/she is being bullied.  If he/she cannot communicate this to you verbally, ask students you know who attend the same school or the classroom teacher.

-          Implement rules: Children should be safe at home and know what to do if they are being bullied.  If your child has siblings, teach them to say a loud ‘STOP’ or put his hand in front of his/her body if he/she does not communicate with words when the other child becomes too rough.  These skills learned at home can transfer to school when it is happening with a bully.

-          Get support: It can be difficult to deal with these issues on your own.  Make sure you have someone to talk to about it, they may have great ideas to share with you!

If bullying is happening to your son or daughter at school, you should familiarize yourself with the Department of Education’s Policy 703 (Positive Learning and Working Environments).  This policy provides schools with a framework to create environments that are positive for all students.

You should also ask the school if they have properly investigated your child’s complaints.  This is important as your child may not have shared the issue with an adult at the school.  That way, you can inform the school your child is being bullied and the issue can move toward a resolution.

You can also ask the school what specific actions they have taken to address the bullying problem to ensure something is being done about it.  It is important for you and the school to know where and when the bullying takes place so that the proper supports can be given to your child at the appropriate time and place.  If the bullying was taking place on the school bus, the school may want to put an adult on the bus while this issue is being resolved.

Remember that the school has a “duty of care” to all students.  By not taking appropriate actions, they can be held liable, especially if there is a negative impact on the student.  A negative impact could be anything from an effect on mental health, grades or school attendance.

The school’s duty is to provide appropriate supports to the student who is being bullied.  The school should create a network of support that would be available to the student during school hours.  If this problem persists, the school should also keep moving forward by getting different leaders from the community to come to the school to intervene and talk to the students.  A bullying expert, police officer, or probation officer could be contacted, along with other relevant community members.

Here is a small list of programs you might want to suggest to the school your child is attending.  These programs can help with bullying situations or can also be used as a prevention method.

Stop a Bully: Stop a Bully is a Canada-wide national non-profit organization that provides schools and students with a safe and anonymous bullying reporting system.  Along with increasing awareness and accountability when it comes to bullying, it allows schools to be proactive in addressing bullying before it happens. http://www.stopabully.ca/

Roots of Empathy: Their mission is, “to build caring, peaceful, and civil societies through the development of empathy in children and adults.” http://www.rootsofempathy.org/

Beyond the Hurt: A Canadian Red Cross program that provides workshops to youth, adults who work with youth and parents.  http://www.redcross.ca/what-we-do/violence-bullying-and-abuse-prevention

Circle of Friends: A proactive program for elementary school students who have a harder time than others making friends.  (If interested in the Circle of Friends program, please contact NBACL for training.)

Best Buddies: A national non-profit organization which partners students who have a disability with students who do not have a disability based on shared interests. http://www.bestbuddies.ca/

Interested in learning more?  Barbara Coloroso, international best-selling author and speaker will be in Fredericton on October 9^th. She will be holding two workshops: one for teachers: “Teaching with Wit and Wisdom,”and one for parents: “Parenting with Wit and Wisdom.” To register or for more information, please click on the following link: http://www.nbacl.nb.ca/en/home-en/item/293-a-workshop-with-barbara-coloroso-kids-are-worth-it-teaching-with-wit-wisdom

http://www.nbacl.nb.ca/en/home-en/item/294-kids-are-worth-it-parenting-with-wit-wisdom-a-special-evening-session-for-parents-and-families

Making Criminal Trials More Accessible for Individuals with an Intellectual Disability

Hello,

My name is Marci Wiggins, and I am a summer student here at NBACL in Fredericton, helping out in the area of Social Policy Research. I am also a law student at UNB, and some of the research I have been helping out with this summer has focused on ways that our legal system can change its policies and procedures to better accommodate people who have an intellectual disability. This blog entry will focus on:

·         Procedural barriers that face people with an intellectual disability who wish to or are required to participate in a criminal trial, and

·         The progress that has recently been made in removing those barriers, focusing mostly on  changes made to the Criminal Code and the Canada Evidence Act in 2005, and on the Supreme Court of Canada (SCC)’s decision in the case of R v DAI last year (2012). 

·         Future areas for improvement and change in the trial process.

If you have any feedback on these recent changes, or any ideas about other changes that should take place to make legal and courtroom processes more accessible for everyone, or any comments at all, please contribute to the discussion!

People with intellectual disabilities are entitled to equal protection under law. However, until very recently, criminal procedure and evidence rules have made it extremely difficult for individuals with disabilities who have been victims of crime to have their complaints successfully heard and brought to justice. This is especially concerning because, unfortunately, individuals with disabilities become the victims of crime more often than people who do not have disability. A lack of successful court cases when individuals come forward means that the trend is likely to continue because the offenders know they are not likely to face legal consequences. The following statistics highlight the high rates of victimization among people with an intellectual disability:

·         An American study found that approximately 68-83% of women with [an intellectual disability] will be sexually assaulted during their lifetime, while the rate for women without a disability is about 18% (Wacker, 2008).

·         In Canada, women who had some kind of disability were about 1.5 times more likely to have been sexually abused as children than women who did not have a disability (Sobsey & Doe, 1991).

And here are some statistics on the number of abusers that are charged, and convicted:

·         The offender was known in 95.6% of cases

·         22.2% of those offenders were charged with the offense

·         Only 8% of the known offenders were found guilty

As you can see, the issue is a very serious one, and one that almost everyone agrees we need to address. So, why is it so difficult for individuals with an intellectual disability to receive the justice that they deserve in criminal trials? Some of the reasons relate to the procedures for running the courtroom, which are often strict, formal, complex, and full of specialized legal terms, making them difficult for some individuals with an intellectual disability to navigate without support. Other reasons have to do with the strict rules of evidence that exist to protect the rights of the person accused of committing the crime, who is innocent until proven guilty. Some of the specific barriers individuals with an intellectual disability often face in court include:

·         Long days in court that require individuals to focus for long periods of time without breaks

·         Difficulty understanding court rules and legal terminology

·         Rules of evidence that often prevent an individual with an intellectual disability from testifying because the judge rules that they are not competent or are not able to provide testimony that is accurate and reliable.

It is important to make sure that evidence presented in trial is fair to the accused, and that court remains in

order. On the other hand, Canada has promised equal treatment and protection under the law to everyone under the Canadian Charter of Rights and Freedoms and the United Nations Convention on the Rights of Persons with Disabilities, and we cannot allow people with intellectual disabilities to continue to be denied justice for crimes they have suffered. In the past decade, the Canadian government and the SCC have started to address this by changing the process so it is accessible to victims with intellectual disabilities while still being fair to the accused. The first major changes were made in 2005 when Parliament agreed to change some sections of the Canada Evidence Act and the Criminal Code. Here is a summary of the most important changes they made for individuals with a disability:

·         If a witness with a disability can communicate what happened, but may have trouble doing so in a courtroom setting with the accused and his or her lawyer present, that witness can describe the crime in a video recording (as long as they do this soon after the alleged crime), and the judge will allow the video to be used as evidence (Criminal Code s. 715.2).

·         A judge can allow the witness to testify outside the courtroom or behind a screen or device that prevents the witness from seeing the accused if this is the only way the witness will be comfortable telling their story(Criminal Code s.468.2).

·         A witness with a disability may have a support person of their choice present closebye when they give testimony, unless the judge thinks that this would interfere with the accused’s right to a fair trial (Criminal Code s. 486.1(1))

·         The judge can also prevent the accused from cross-examining the witness if this is necessary so that the witness can give a full and candid account of the crime.

·         A witness must understand what it means to take an oath if they are going to provide testimony sworn under oath. Under the new rules, if a child witness is not able to understand what it means to take an oath, the judge show still allow them to testify as long as they are able to communicate and they promise to tell the truth (Canada Evidence Act s. 16(1)). Children should not be asked to explain what it means to promise to tell the truth.

Until 2012, the courts did not interpret the section of the Evidence Act for adults with a disability in the same way as they interpreted s.16 (1) – the section on children’s testimony described in the last bullet point above. The usual practice was to say that an adult with a disability could not testify if they could not explain to a judge what it means to take an oath, or what a promise to tell the truth means. The SCC changed this in its judgment in R v DAI last year.

After this decision, if an adult with an intellectual disability wants to provide testimony, they need to be able to communicate their evidence and promise to tell the truth, nothing more. The judge can ask them questions related to their own life to determine if they are able to tell the difference between the truth and a lie, but cannot make them explain what a promise means.  This an important step towards equality, because normally adults who take the oath are not forced to explain to a judge what it means. Just because a person with an intellectual disability may have difficulty explaining something abstract such as what it means to promise the truth, this does not mean that they will be any less truthful on the witness stand. Research suggests that individuals with intellectual disabilities can remember events they have experienced and relate their stories accurately to the jury, and they are no less likely to tell the truth than any other witness (Willner, 2011; Wacker, 2008).

The other positive development coming from this case is that the SCC made suggestions for how other judges should handle hearings which decide whether an adult with an intellectual disability is able to testify in the future. The following is a list of the suggestions they made:

•  People that the witness has a personal relationship with should be present. They can explain how well the witness is able to communicate, and help the witness understand the process and make themselves heard.   
• The witness should be allowed to appear before the judge and make their case for being able to testify. 
• The judge should observe the witness directly, and not base their decision on the opinions of expert witnesses who have evaluated the witness alone.
• The judge should not decide whether the witness is capable of testifying based only on a label or test result.
•  Judges, lawyers, and anyone else involved in the hearing should ask questions “patiently, and in a clear, simple, manner”.

These changes should all combine to make it possible for more adults with an intellectual disability to testify in criminal trials, and for them to become more effective witnesses because more appropriate support and accommodations will be provided. I am hopeful that this will bring about more convictions and reduce the number of people with disabilities who become victims of crime. The changes also bring us closer to the promise of equal protection and benefit of the law for citizens with disabilities. However, we have not fully accomplished this goal yet. Some trial processes and attitudes of people involved in the justice system still make it more difficult for individuals with an intellectual disability to be successful trial participants. Some of the issues that we still need to tackle are listed below:

• Judges or juries have a tendency to give less weight to the testimony of witnesses with intellectual disabilities compared to witnesses who do not have a disability. This is especially true if the witness promises to tell the truth rather than testifying under oath (because they are not able to explain what an oath means in abstract terms).
•  The cross-examination process is designed to poke holes in the witness’ story, and is not well-suited to individuals with an intellectual disability.
• Court proceedings are long and formal, and individuals with an intellectual disability (or most individuals, for that matter!) may find it difficult to focus for that long, or to understand what they are expected to do.

All in all, our justice system is making great progress in accommodating persons with disabilities, but more needs to be done before equal protection of the law for all citizens becomes a reality.

 How do you think we’re doing with making court proceedings (whether they are criminal or not) more accessible? Do you see any areas that still need work, or have any recommendations for future change? If so, or if you have any questions at all, please leave us a comment! I would love to hear from your ideas and am happy to respond to any questions or send more information if you are interested. If you aren’t able to leave your comment right away, I can be reached by email at mwiggins@nbacl.nb.ca or marci.wiggins@unb.ca. 

Thanks for reading,

Marci