HAPPY BELATED CANADA DAY!!

I hope you and yours enjoyed a great one.

As for me and mine, I am happy to report that Yours Truly managed to not just celebrate our great country and spend some bonding time with my youngest daughter, but I also dotted all my i's and crossed all my t's ... that's right - I finished up the last of the paperwork necessary to finalize the change back to practicing status.

So please welcome my firm, MMC Legal Services, into the big bad world. And spread the word, this particular firm only serves the disability community.

Cross-posted at A Primer on Special Needs and the Law

Whazzup, Buttercup?

Hey there all you hale and hearty fans of Free Falling. How goes it?

Whoa, settle down, settle down, all questions will be answered in due course.

1.  Yes, yes, I am still alive - thanks for asking!

2.  And yes, I have been busy. Very busy, in fact. My, aren't you all a discerning lot.

3.  Well, if you really want to know, I mean if you insist.

Sorry, I can't seem to hear you.

. . .

 . . .

Ah, there you are. Very well - I have been (amongst many other things) preparing for my return to the (part-time) practice of law.

4.  Preparing what? Seriously?? 

5. How's about my office space? My brain? My accounting system? My life? And that's just for starters.

6.  Oh, really, you want to know when?

Very well, that would be ... drum roll please ... wait for it ... July 1st.

7.  Why, yes, that is Canada Day (quite an impressive lot you are, I must say).

8.  No, no, that is only a coincidence. Trust me. But never fear, we shall celebrate both Canada Day and my official return to the practice of law in fine style. That, my good friends, is a promise.

9.  Seriously? You want to know what *other things* I have been up to? You mean this is not enough? What is wrong with you people? What more do you want from me? Blood??

10.  There you go, getting all upset again ... now everyone back in your seats or I won't be saying another word.

. . .

That's better. Now where were we? Crowd control can be sooo taxing at times ....

11.  Sheesh, no sense of humour, this crew. And, just for future reference,
No. 
Further. 
Booing. 
Will. 
Be. 
Allowed.

12. Are? We? Clear?

13.  Very well, I will give you one little example of some of those *other things* I have been up to.

14. How about preparing for the high school graduation of BOTH my daughters? Is that good enough for you?

15.  That's right, I said BOTH my daughters.

16. Right, again. Both those graduations will be held this very month.

17.         ...

Sorry, I've just been advised that we're out of time for today. I regret to inform you that no further questions will be taken at this time.

Thank you very much for attending and please feel free to drop donations of any denomination (the bigger the better) in the tip jar on your way out.

What's that? There is no tip jar?

Damm ... I knew I forgot something!

. . .

Buttercup has now left the building.

More Good News on the "Hate Speech" Front

You might recall that I was very pleased when the move was made to remove sec. 13 from the Canadian Human Rights Act last year.

Well, I was even more pleased when I learned today that the Supreme Court of Canada (SCC) has now weighed in on the wording of a similar provision in Saskatchewan's Human Rights Code.

The facts of the case are notorious. After William Whatcott distributed flyers condemning homosexuality using very strong language, the Saskatchewan Human Rights Tribunal found that that his actions breached sec. 14(1)(b) of the Code, which prohibits the publication of printed matter that “exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons” because of sexual orientation.

Although the SCC upheld part of that provision as constitutional and not a violation of Whatcott's freedom of expression under the Canadian Charter of Rights and Freedoms, it found that the prohibition against ridicule, belittlement or affronts to dignity did not meet constitutional muster.

The Court held that those words are not synonymous with hatred, which was defined as “whether a reasonable person, aware of the context and circumstances, would view the expression as likely to expose a person or persons to detestation and vilification on the basis of a prohibited ground of discrimination”. Thus, the Court made clear that it is unconstitutional to prohibit speech that is something less than detestation and vilification.

Finally, the SCC held that although freedom of religion (Whatcott argued that his flyers were motivated by his sincere religious beliefs) and religious speech have broad protection like the freedom of expression, at the same time, that speech cannot expose vulnerable groups to detestation and vilification, even if it is sincerely-held.

Although it will fall to the politicians to ultimately (hopefully) remove remaining "hate speech" provisions from Canadian human rights legislation, the SCC decision at least clarifies that

• the test of hatred must be applied objectively (i.e., the reasonable person aware of the relevant context and circumstances), not based on the subjective views of the publisher or the victim; and
• “hatred” involves two concepts—detestation and vilification, which enforce the legislative objectives of anti-discrimination laws.  

I guess all we can do now is await the political process. Bill C-304, which would repeal the hate speech provision in the Canadian Human Rights Act (and which provision the Federal Court found largely constitutional in October, 2012),  has passed the House of Commons and is currently being debated in the Senate.

In Alberta, Premier Redford promised during her leadership campaign to repeal the equivalent Alberta provision.

Any other Province care to step forward and be heard?

~  ~  ~  ~

By the by, writing this post got me to thinking about our good friend (term used loosely), Rev. Stephen Boissoin, whose case (last we checked) was winding its way through the courts.

I am pleased to say that the good Reverend (again, using the term loosely) was successful, both in Alberta's Court of Queen Bench and the Court of Appeal, where the Court held that “matters of morality, including the perceived morality of certain types of sexual behavior, are topics for discussion in the public forum,” and “freedom of speech does not just protect polite speech.”

In the words of Jonathan Kay, "Just so".

'Ask and You Shall Receive'

I've always suspected it. And now I have proof! All Some good things do come to those who wait.

Remember way back in the way back, some of those *fun* conversations we had at Lex"s? The ones about Canada's human rights system and how evil it was worked? About whether or not the so called "hate speech" provisions belonged in the federal Human Rights Act?

Well, they said they were going to do it. And, lo and behold, they actually did something right.

I must admit, I never thought I would find myself in agreement with these words.

“Way to go, Harper. I know we can’t get everything we want, but I stand a little taller today as a Canuck,” wrote “OneMan.”

Especially not with this Conservative government in power.

But be that as it may, I've repeatedly said that I don't think sec. 13 ever should have been added to the Human Rights Act. In my opinion, such matters are better dealt with in court - as either "hate speech" (inciting someone to violence) under the Criminal Code or, civilly, as a defamation claim for damages, if necessary.

Apparently, however, the Canadian Bar Association, who was in favour of the inclusion of s. 13 in the first place, disagrees. In a January 2010 report, it argued for the retention of the section, albeit without the penalty provisions that were attached. Their argument appearing to be that while the general "compensatory" damages provided for elsewhere in the Act are fine, the "punitive" sanctions attached to s. 13 are not.

Which, makes for an interesting argument/result, considering that, in general, the Act provides a much wider array of powers to a panel that has found discrimination in cases outside of sec. 13, both monetarily and otherwise, than it does for a violation of sec 13. But, hey, at least no one would be forced to pay a "penalty" (even if it is in a smaller amount than what can be ordered as damages for compensation for pain and suffering) as was allowed under sec. 54(3)(c). [Yeah, right, makes perfect sense to me, too.]

I am however in agreement with the CBA with it's concern that the debate surrounding sec. 13 was the start of a campaign to weaken Canada’s human rights laws.

Tell me, please, does any of this sound familiar?

Of greater concern to the CBA is the fact that the debate surrounding the expediency of section 13 has become the proxy for an open assault on the very existence of an administrative framework to protect human rights in this country. Critics have decried human rights proceedings as "kangaroo courts" which provide only "drive through justice" and advocated that human rights tribunals and commissions should no longer be permitted to operate. We reject attacks of this kind and reiterate forcefully our support for the continued importance of the work undertaken by these human rights bodies to foster human rights in Canada. Legal protections for human rights have existed in Canada since 1947 when Saskatchewan enacted the first bill of human rights in North America.

Uh huh. Could that have been taken out of some of those comment threads at Lex's or what?

Of course, now that the deed's been done, we have those who fear "free speech boost will rally neo-Nazi cyberhate". Personally, that doesn't concern me too much - although we will, no doubt, always have such idiot groups in our midst, considering that Canadian police forces reported a 42 per cent rise of in hate-based incidents in 2009, as compared to 2008, and a 35 per cent jump the year year before that, it doesn't seem to me that sec. 13 was having much of the desired effect anyway.

So, boys and girls, I am happy to report that it looks like the system can (and indeed has) work as advertised, at least in this case.

I knew it could. I knew it could. I knew it could ...

Uncaring, Unprincipled, Unacceptable

That I wrote about this very issue two years ago is a very sad commentary:

That a funding kerfuffle, that the federal and provincial governments cannot agree on who, exactly, is responsible to provide the funding necessary for aboriginal children with special needs to stay at home, with their families, where they belong is sadly, perhaps, not surprising.

But that this bit of 'government infighting' as it is so colloquially called has resulted in families being told that they may be forced to give up their children because the First Nation can no longer pay for their care and federal and provincial governments can't agree on who should pay is beyond despicable.

And if it was unacceptable then, what is it now?

Two years ago, I questioned where the  Nova Scotia government stood when it comes to Jordan's Principle.  I guess now we have our answer.

Jeremy Meawasige loves music, sunny days at the beach and his mother.

But Jeremy has extensive physical and mental disabilities. And the failure to resolve a dispute between the Pictou Landing First Nation and the federal government over how his care is paid for may result in his institutionalization.

"It’ll be over my dead body," said Maurina Beadle of the possibility her 16-year-old son might be institutionalized.

Jeremy is diagnosed with autism, hydrocephalus, cerebral palsy and spinal curvature.

For 15 years, Beadle provided 24-hour care for her son. She spoon fed him pureed foods, carried him, prevented his self-destructive tendencies and changed his diapers.

That, in itself, by itself, is unacceptable in my mind. That a parent should single-handedly have to provide 24-hour care for their child for all those years anywhere in Canada is quite simply unacceptable. 

But as if that wasn't bad enough, last year Jeremy's mother had a stroke.  Fortunately, the Pictou Landing First Nation stepped up to the plate, providing three hours of home care every day.  Last year that cost the First Nation $82,000.

But now, even as the cost decreases due to his mother being out of a wheelchair and now able to walk with the assistance of a cane, she is being told that her son might have to be institutionalized because no level of government is willing to pick up the cost of a small amount of home care. Home care to which Jeremy would be more than entitled to were he to live off-reserve in this Province.

They Never Had A Chance

Our provincial newspaper has just wrapped up a five-part series looking at "care options available to vulnerable person with intellectual disabilities across Canada".  The series was well done (the writer, Canadian Press reporter Michael Tutton, writes a fair bit in regard to issues around persons with disabilities) and it was an interesting, albeit hard read.

From the woman in Nova Scotia whose 20-year-old grandson spent 15 days locked alone in a constantly lit room at the Braemore adult residential centre with only occasional breaks, urinating in a corner when he was unable to get a staff member’s attention...

... to the aging mother in Newfoundland who worries who will care for her severely-challenged adult son when is was no longer around to do so...

... to the 16-year-old with a severe case of fetal alcohol spectrum disorder (making him impulsive, easily frustrated and with very little short-term memory) whose increasingly violent behaviour deteriorated to the point where his adoptive parents could no longer care for him in their home but whose current life in small group homes has been a disaster, allowing him to stay out all night, drinking and doing drugs...

... to the issues of aggression that can stem from poor housing options and lack of access to mental health services for those with intellectual disabilities (an issue I can personally speak to when it comes to the Blue Jay being denied access to our local child and adolescent mental health services for the simple fact that she is mentally challenged).

To the one bright spot, the what can could and should be - namely, the positive effects of housing and care options that actually work, like L'Arche.

A happy, safe home and community involvement - at some level, isn't that all any of us really want for our children when they mature into adults, whether they be mentally challenged or not?

And yet, I write not about any of those stories today. 

Instead I write about a baby boy "who never had a chance". 

His young mother squatted on the bathroom floor to deliver him while the baby's father stood in the doorway, smoking a cigarette and ignoring her pleas to call an ambulance. Finally she reached over to the bathroom sink, grabbed a pair of scissors she believes her boyfriend used for his dope and cut the umbilical cord.

The baby wasn’t crying. She left him on the floor, went out into the living room, sat on the chesterfield and watched television as Cunningham cleaned up the bathroom.

The infant was dead at birth, she said. "He wasn’t crying or breathing or nothing."

Oickle testified at Cunningham’s preliminary inquiry last December that she saw Cunningham put the baby into a box and then put the box in a derelict oven in the hallway outside their apartment.

The body stayed in the oven for five days until family members found out about the birth and persuaded Oickle to take the baby to nearby Queens General Hospital.

As sad (and depraved) as this is, unfortunately, it's not uncommon. And, thus, it was this part of the story that really grabbed and held my attention.

A neuropsychological assessment and a forensic report found Oickle fit to stand trial and criminally responsible for her actions, although she has an extremely low IQ — in the bottom one percentile of the population — and limited coping and problem-solving skills.

Bryson said those factors help explain Oickle’s actions.

Defence lawyer Franceen Romney, who represented Oickle, said the assessment shows Oickle is able to handle routine situations but not complex ones. In such cases, her reasoning, judgment and ability to make decisions are impaired.

An IQ in the bottom one percentile of the population means that this young woman "officially" qualifies as being "mentally challenged".

Given that we have no information about the boyfriend's "mental capacity", I can make no judgment in that regard although I must admit that a great deal of my anger is directed against him. He who callously stood by and refused to make a simple phone call (or even allow his girlfrind to do so) while his own child was dropped onto a bathroom floor and then scrubbed up that same floor, placed the baby's dead body in a box and leaving it in a derelict oven in the hallway of their apartment building.

I am deeply saddened by this young woman's story.  Fortunately, some sort of justice seems to have prevailed in that although she was convicted of failing to obtain assistance during childbirth, she was placed on probation for three years, during which time she must have no contact with her boyfriend, get mental health counselling and live with her parents.

Am I too easily "letting her off the hook" for her actions?

Or am I looking at my own 18-year-old daughter, with similar ability levels, for whom I fear a society that would just as easily manipulate and hurt her?  I must admit that I think that being "forced "to live with her parents is likely the best thing that could possibly happen to this young woman. 

After all, what other options are there for her?

Stress Reliever

My apologies for the light blogging since my return from Boston but things have been more than a little ... shall we say stressful ... here in Free Falling land.

Although I had a blast in Boston, my body, apparently, had a different take on the subject.  Meaning that I, not unexpectedly, felt myself starting to crash shortly after my return home.  Which was okay, I was expecting that and more than willing to live with it.

What I wasn't prepared to live with (although apparently I didn't have much say in the matter) was my husband's completely unexpected dismissal from his employment shortly after my return.  And not just any employment, but the job he's been at for the past 15 years.  Dismissed as in walk in to work one morning and hear the words "You might as well go home". Go home. With no notice.  No pay.  No nothing.

And, yes, before you go there, you're absolutely right - his (former) employer can't do that.  And he won't be allowed to do that although that is exactly what is happening at the moment.   And, just to put the icing on the cake, that job loss also resulted in the loss of our health insurance.

Can you say Fun, Fun, Fun?  Well, I can't. 

In addition to the fact that I've grown rather partial to paying our bills, we have very high drug costs.  Mostly because of me.  And those same drugs are what allow me to keep working.  So now what?

Yeah, I did mention it's been a bit stressful around here, haven't I?

And so now we reach the point of this post ... yes, believe it or not, there almost is one.

Moseying back through the blog the other day, I came upon this post.   This, which I hadn't played since my return from Boston.  Something made me click the Play button.  And I was so glad I did.

I have just discovered what I'm sure is destined to be my prime stress relievor at the moment - and, yes, I do realize that might make me a very pathetic individual.  But whatever works, I say. 

There's something about just singing along and belting out "I just wanna get you out of Teterboro.  We want to leave but they won't let us go.  Just heard on the radio, we're stuck in Teterboro" which is very, very good for the soul.  Go ahead.  Try it.  I will wait.

It might help, of course, that the Kit Kat was initially as taken with the video as I was and comes a'running the moment she hears the music.  For to sing along with her dear mother.  We do rather enjoy laughing at ourselves.

And so, for now dear friends, I can't but leave you with Mike and his feelings on Teterboro.

Which will have to take the place, at least for the moment, of my other blogging - that which I can't quite convince myself to do at the moment.  There's the whole issue of the white versus red poppy on Remembrance Day (there's no doubt a place for both but not in the same month and certainly not on the same day, says I),  Canada's sudden surprise unexpected (that's sarcasm by the way) decision to stay on in Afghanistan in a "non-combat" role until 2014 and the Supreme Court of Canada's latest decision setting out the fact that that we have no right to counsel during police interrogation.

Such is life. For the moment I appear to be the proud holder of an open-ended multiple return trip to Teterboro. Until we meet again, then ...

For The Wisdom of Solomon

I read an interesting opinion piece in our provincial newspaper a couple of weeks ago. 

Entitled "Racist Parents, innocent children: What to do?", it referenced a Court of Appeal decision in New Jersey where three young siblings, with given names of Adolph Hitler, JoyceLynn Aryan Nation and Honsztynn Hinler Jeannie (apparently "Honszlynn Hitler" is meant to honour Heinrich Himmler, the Recihsfuhrer of the SS) were removed from their parents, with custody being transferred to the state. 

Is anyone out there actually wondering what got Children's Aid involved in the first place?

Although a family court had previously found insufficient evidence that the parents had abused or neglected their children, the three appeal court judges ruled that the parents had “recklessly created a risk of serious injury to their children by failing to protect the children from harm and failing to acknowledge and treat their disabilities". 

The children's names were not mentioned in the appeal decision and the court relied on other grounds to find the children were in need of protection (the ones noted in the news accounts being that both parents were unemployed and suffered from unspecified physical and psychological disabilities).

And I must say that although we don't have much detail as to the extent of the parents' "disabilities", it does seem rather strange that the state would be granted permanent guardianship solely on those enumerated grounds.  Or, at least not until after extensive services had been put in place in an effort to help the parents remedy their deficits.

The  New Jersey case mirrors a Canadian one where a young child in Manitoba went to school with a massive swastika on her arm and other slogans on her legs, including references to Adolf Hitler and the slogan, “We must secure the existence of our people and a future for white children.”

Photos of the markings were shown in court.

“The meaning of that is that black people don’t belong,” the girl later explained to the social worker.

The woman told court Monday she was stunned by what transpired during an hour-long interview with the girl, who frequently used the N-word to describe blacks and said she believes strongly in what her parents taught her.
The girl also gave a graphic description of how to kill a black person, telling the social worker about using a spiked ball attached to a chain and then “whipping them until they die.”

The worker asked the girl if those ideas “scared her.”

“No, black people just need to die. That’s not scary. This is a white man’s world,” she replied.

Although the case was argued as having "nothing to do with infringing on free speech or expression" but rather “longstanding family dysfunction” (including drug and alcohol abuse, mental illness, neglect, and criminal activity and associations), some, at least, have read the court's finding that the child and her younger brother were at risk of harm from their Nazi-sympathizing parents as proposing that the risk that the child would acquire racist attitudes was also grounds for removing them from their parents.

And the point has been rightfully made that these children were not originally removed from the home the reasons enumerated above; in fact, they were removed from their parents long before these details came out.  No, there's really no other way to spin it other than that they were taken because the children's aid workers didn't appreciate the racist beliefs of the parents.

Hrrumph

It's not fair, just not fair, I tell ya. Here it was, my chance to be RICH. RICH, I tell ya.

And I'm excluded on the basis of what ... was there something, perchance, that I've done wrong? Did I err in some way?

No. No. I'm excluded on the basis of ... wait for it ... Geography!

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON
In re Classmates.com Consolidated Litigation, Case No. 09-cv-0045-RAJ

NOTICE OF PROPOSED CLASS ACTION SETTLEMENT TO: ALL MEMBERS OF THE SETTLEMENT CLASS, AS DEFINED IN THIS NOTICE A SETTLEMENT HAS BEEN PROPOSED THAT WILL AFFECT YOUR RIGHTS IF YOU ARE A MEMBER OF THE SETTLEMENT CLASS OR SETTLEMENT SUBCLASS DESCRIBED BELOW. PURSUANT TO THIS SETTLEMENT, IN ADDITION TO THE INJUNCTIVE RELIEF BEING OFFERED, YOU MAY BE ENTITLED TO SUBMIT A CLAIM FORM TO RECEIVE BENEFITS UNDER THE SETTLEMENT.

PLEASE READ THIS NOTICE CAREFULLY AND IN ITS ENTIRETY.

1. WHY DID I GET THIS SETTLEMENT NOTICE?
The purpose of this Notice is to inform you that a proposed settlement (the "Settlement") has been reached in the consolidated class action lawsuit entitled In re Classmates.com Consolidated Litigation, United States District Court for the Western District of Washington, Case No. 09-cv-0045-RAJ (the "Litigation"). This Notice explains the Litigation, the Settlement, your legal rights, the injunctive relief being offered through the Settlement, what additional benefits are available, who is eligible for them, and how to get benefits if you are eligible.

2. WHAT IS THIS LAWSUIT ABOUT?
In this Litigation, Plaintiffs assert class action claims against Classmates Online, Inc., Classmates Media Corporation, and United Online, Inc. ("Defendants"). Complaints filed in the action allege, among other things, that Defendants sent email messages to subscribers of http://www.classmates.com/ that were in violation of the law and engaged in conduct that had the potential to violate w ww.classmates.com users’ privacy rights. Defendants have denied and continue to deny Plaintiffs’ allegations and maintain that Defendants have not engaged in any wrongful
conduct. Defendants also contend that the Litigation is not suitable for class action treatment. Defendants have nevertheless concluded that it is in their best interests that this Litigation be resolved subject to and on the terms and conditions set forth in the Settlement Agreement.

This Settlement is the result of arm’s-length negotiations between Plaintiffs in the Litigation, individually and on behalf of the Settlement Class and Settlement Subclass, and Defendants. Both sides agree that, in light of the risks and expenses associated with continued litigation, this Settlement is fair and appropriate under the circumstances. Plaintiffs further believe that this Settlement is in the best interests of the Settlement Class and Settlement Subclass. Please be advised that the United States District Court for the Western District of Washington has not ruled on the merits of Plaintiffs’ claims or Defendants’ defenses and, therefore, you should not make any assumptions about the strengths or weaknesses of the claims or defenses in the Litigation.

3. WHO IS COVERED BY THE SETTLEMENT?
For settlement purposes, the parties have stipulated to the certification of a Settlement Class and a Settlement Subclass, as defined below.

"Settlement Class"
All Persons, excluding Settlement Subclass members, residing in the United States who were registered with or subscribed to w ww.classmates.com at any time between October 30, 2004 and April 19, 2010.

"Settlement Subclass"
All Persons residing in the United States who registered with or subscribed to http://www.classmates.com/ between January 1, 2007 and April 19, 2010, and who paid for a Gold Membership subscription to w ww.classmates.com (and did not previously receive a refund of such payment) as a result of:

Upgrading to a Gold Membership through the process on Classmates.com of seeking to see who visited their Guestbook; or Upgrading to a Gold Membership after clicking on a link to Classmates.com in a Guestbook email, or Connections email that included a Guestbook subject line, and upgrading to a Gold Membership within the same session activated by clicking on that link or within the same day of clicking on that link; or Upgrading to a Gold Membership within the same day of receiving a Guestbook email or Connections email that included a Guestbook subject line.

You are receiving this Notice because you have been identified from Defendants’ records as a potential Settlement Class member. According to Defendants’ records, you do not appear to be a Settlement Subclass member. There is no overlap between the membership of the Settlement Class and the Settlement Subclass. If you have any questions regarding your claim, please contact the Settlement Administrator at the address listed in Section 5 below.

4. AS A SETTLEMENT CLASS MEMBER, WHAT AM I ENTITLED TO?
In addition to injunctive relief, as a Settlement Class member, if you do not exclude yourself from the Settlement and if you timely submit a Valid Claim Form, you are entitled to receive a credit of $2.00 off of the purchase or renewal of a http://www.classmates.com/ Gold Membership. Under the Settlement Agreement, Settlement Subclass members are entitled to receive either a cash payment of $3.00 or a credit of $2.00 off of the purchase or renewal of a w ww.classmates.com Gold Membership.

In addition to its cash and credit components, the Settlement also provides, on a non-opt out basis, for Defendants to provide injunctive relief to all Settlement Class and Settlement Subclass members. A description of the injunctive relief that Defendants are providing is set forth at the following website: http://www.cmemailsettlement.com/.

5. HOW CAN I GET THE CREDIT THAT I AM ENTITLED TO?
To receive a credit of $2.00 off of the purchase or renewal of a w ww.classmates.com Gold Membership as a Settlement Class member, you must fit the description of a Settlement Class member and timely send a Valid Claim Form to the Settlement Administrator.

You can read the rest of it here.

But just remember who sent you on the journey towards your new-found riches.

The Last Day of the Rest of Your Life

Can anything be worse than the pain of losing a child?

Personally, I feel like I know a bit about grief and mourning lately. But I can't even imagine, can't even begin to fathom, the pain of losing a child. It's beyond me.

I know of parents who have survived that kind of loss. Who have, in fact, not just survived (which I am afraid might well be beyond my capabilities) but even thrived, managing to transform that tragedy into something amazingly beautiful. Something that helps other children and their families. I am honoured and humbled to count such people amongst my friends.

But imagine not just losing your child. Not just. Like that could not possibly be hard enough. Imagine being accused of killing your child. Imagine being convicted and sentenced for your child's death. Imagine spending the past 14 years in prison.

For killing your child. Incarcerated for 14 years. As you mourn the loss of your child's life. And the loss of your own. Because you know what no one else seems to recognize. That you, too, are an innocent victim. That you could never, you would never, you did not harm your child.

That, you, yourself, are the innocent victim of someone else. The pediatric pathologist from hell.

On Thursday, 14 years after being convicted of killing her two-year-old son, Marquardt was granted bail.

Though the courts haven’t yet decided if they’ll hear her appeal, Marquardt was beaming after being released.

"Today I finally have my day," Marquardt said outside the Ontario Court of Appeal, struggling to catch her breath through her tears. "This is my day. I’m out. I made it."

She was the last known parent who remained behind bars based on the testimony of Dr. Charles Smith. Marquardt was convicted of second-degree murder in the death of her son Kenneth and was handed a life sentence in 1995.

She said she found the boy tangled in his bedsheets, but Smith said he was mothered or strangled.

Marquardt’s lawyer James Lockyer said not only did she not kill her son, but no crime was ever committed. Kenneth had seven documented trips to hospital for seizures, Lockyer said.

Smith’s findings have since been rejected by six forensic experts, including one who said the epileptic boy could have died from a seizure.

"Pathology can no longer determine the cause of Kenneth’s death," Lockyer said outside court.

"There’s every reason to believe that he died as a result of seizures that he’d suffered from all his life."

SUDEP, or Sudden Unexplained Death in Epilepsy, is not only a tragedy, but also, exactly what it says.

The sudden. Unexplained. Death. Of a person with epilepsy. Often in their sleep. Uusally without any evidence of a seizure having occurred. But then again, if the person was asleep (and alone), who would know for sure whether or not there had been a seizure?

It's not something that's talked about a whole lot. Not information that many parents of children who experience seizures are made privy to. 'No need to upset them. To scare them. About, you know, something that will never likely happen', the thinking goes.

Not that common, perhaps. But SUDEP does account for 10% of all epilepsy-related deaths. Admittedly, 85% of these fatalities occur between the ages of 20-50 years. Still, the incidence of SUDEP stands at approximately 1 in 1000 people with epilepsy per year which is at least 10 times of the sudden death rate found in the general population. Which means that if you have a diagnosis of epilepsy, you are TEN TIMES more likely to have "Sudden Death".

Yeah. That's what I said.

Perhaps that's what happened to Tammy Marquardt's little boy. Perhaps it was something else. But either way, it appears that there was no credible evidence that his mother was at fault.

I can only wish her well, hope that her legal troubles are soon over and offer her my deepest sympathies, both for the loss of her child and for the past 14 years. And struggle with the realization that yes, there is something worse than losing your child. That would be losing your child and then being accused of and convicted for his murder.

And as to the other tragedies in this story, the life of a two-year-old little boy snuffed out and the higher risk of death for persons with epilepsy ... I can only offer this.

Thursday, March 26th is Purple Day.

Which I will be blogging more about soon. But as a recent slogan I've seen says so well ...

"A cure may be found someday.
But someone needs your help today".

Your Tax Dollars At Work

It's been a busy session for the Nova Scotia Legislature, it would appear. After all, they did work for a whole seventeen days before rising. Nice work, if you can get it, no?

And lest you think that is unusual in this, our fair Province, does anyone recall 2006? They worked all of an entire twenty days that year. Yup, that's right 20 whole days, one day short of an actual three weeks. Of work.

Now don't get me wrong, I know all most some MLAs work hard in their constituencies. As well they should. But we are talking about Members of the Legislative Assembly here, aren't we? As in, perhaps they should make an effort to actually spend some time in the Legislature? You know, legislating.

Anyway, I thought I would give you a taste of some of the stellar legislating that was done. During that gruelling 17 days. I proudly present An Act to Declare the Sable Island Horse to be the Provincial Horse of Nova Scotia Act, An Act to Declare Ice Hockey to be the Provincial Sport of Nova Scotia, and legislation banning students from using a cell phones or other communications devices in a public school classrooms and requiring lottery tickets to have their expiration dates marked clearly and visibly.

However, lest you think all was lost, never fear, for the year 2009 shall now officially be celebrated as the "one hundredth anniversary of the first airplane flight in Canada by the Silver Dart in the Province." And that we do was most noteworthy.

It's not that I mean to imply that our provincial government fiddled while Rome burned. Heavens, no. But, then again, if the horseshoe fits...

Credit Bureau Pays Out ... To You?

So this is interesting.

Apparently, TransUnion credit bureau is on the hook to provide either a cash settlement or free credit-monitoring services to millions of consumers. This as a result of the settlement of a class-action lawsuit claiming that TransUnion violated state laws and the Fair Credit Reporting Act when it sold lists containing personal and financial consumer information to third parties for marketing purposes.

TransUnion, of course, denies any claims of wrongdoing on its part. Which is par for the course in the case of a negotiated settlement. But that, really, is neither here nor there.

Because consumers (this might well be you) have until September 24, 2008, to register for benefits under the settlement. As of August 22nd, about 380,000 people had registered for the credit monitoring services, cash payment, or both, out of 150 million potentially eligible consumers.

Which leaves me sitting here, wishing I was an American right at the moment. Because only consumers who had an open credit account or an open line of credit from a credit grantor located in the United States are included in the class action.

The Settlement Class is defined as: All consumers who had an open credit account or an open line of credit from a credit grantor located in the United States at any time during the period January 1, 1987 to May 28, 2008. The term “Plaintiff Settlement Class” shall include, without limitation, any classes asserted or certified in the Andrews Action and the Frey Action. Excluded from the Plaintiff Settlement Class are (a) Defendants and their predecessors, affiliates, subsidiaries, officers, directors and employees, (b) counsel for any of the Settling Parties in these Actions, and (c) any and all judges and justices assigned to hear any aspect of the Actions, along with their staff, the spouses of the foregoing and any children residing in their households.

Might that include you?

You might want to check it out.
And remember, you only have until Sept. 24th to register.

H/T to GeriLaw

Afeard

It would appear that Prime Minister Harper and his party are afeard. Of a gurl, nonetheless.

Why else these bullying tactics to keep the leader of the Green Party, Elizabeth May, from the televised election debates? I am no particular fan of the Greens ... although I have voted for them once or twice on occasion (more as a vote against the others), the chances of my voting for them in this election are slim (as in slim to none). But that is not the point.

The point is that this suppose to be a democracy. And if the leader of a separatist party for whom only those resident in Quebec can choose to vote is part of the national televised debates, then why not the leader of a national party, fielding candidates in 306 of a possible 308 ridings, whose ranking in the polls has been steadily increasing? Who now has it's first sitting member of Parliament?

Although the network consortium stated that " ... three parties opposed [the Green party's] inclusion and it became clear that if the Green party were included, there would be no leaders debates", it is only Harper who has come out clearly against May's inclusion and stated that the Conservatives would not participate if she was included; neither the Liberals nor the Bloc have threatened to pull out if the Green party is included in the debate. Which leaves the NDP ~ who apparently have been unable to decide whether or not they would boycott the event. Which, although it pains me to admit, doesn't really surprise me.

So let's field test a few propositions here.

• The fact that Stephane Dion agreed not to field a candidate against May in her riding (actually a relatively common practice) may have put Harper's nose out of joint a notch or two, but does not make the Greens the Liberals' candidates or proxies in this election.
• In fact, if anything, May and the Green party could actually hurt the Liberals, it being suggested that they might split the anti-Harper votes into even smaller fragments due to the environmental issues.
• If it's the current situation that actually presents a legitimate concern for Harper, I wonder why he (and the rest of them, including the Liberals) have consistently opposed the inclusion of the Green party in all previous debates.

The question is, should any one (or even two) political parties be able to decide who we, the Canadian people, are allowed to hear debate the issues in this election?

And, by the by, does anyone actually believe for one moment that any one of the parties would dare not participate in the debate if it were to go ahead with the others?

May has threatened to take this issue to the Federal Court. Good for her.

Kudos To Justice Cromwell

Highly credible rumour would appear to be correct.

Which, although I must admit to not usually having much use for the man, good on him, says I.

Our Loss, Their Gain

Highly credible rumour has it that Mr. Justice Thomas Cromwell (currently of Nova Scotia Court of Appeal fame) is a front-runner for the next appointment to the Supreme Court of Canada.

Many moons ago (long before his judgeship days), His Lordship was my Civil Procedure Professor at Dalhousie Law School. He was a great prof (smart, funny and very down-to-earth and approachable) and from what I have seen and heard, an excellent judge as well.

Apparently, I'm not the only one to feel that way.

Lawyers and court watchers throughout Atlantic Canada like Justice Cromwell’s chances.

He is "a very able-bodied person," said Lorne Clarke, a retired chief justice of Nova Scotia Supreme Court. "He’s got a great academic record."

"When he’s on the bench, he’s a mensch," said Joel Pink, a prominent Halifax defence lawyer. "Essentially, he’s a gentleman first class. When you look at Ottawa, that’s essentially what you have, those types of individuals."

Wayne MacKay, a professor at Dalhousie law school, also lauded Justice Cromwell.
"I just think Tom is a person with the qualities required to be a Supreme Court judge: compassionate, very polite, moderate and balanced in his approach to things, so to me, he’d be an excellent choice."

"Cromwell is the best," said one Newfoundland lawyer who spoke on condition that his name not be used. "If I had an opinion on it, he would be the guy. There’s nobody in Newfoundland."

Justice Cromwell is bilingual, which is desirable, especially given that he would replace Justice Bastarache, who is bilingual. And he has experience at the top court, having worked there as an executive legal officer in the 1990s.

Justice Cromwell’s record of decisions shows he is a moderate, court watchers say. Mr. Harper might like to appoint someone more conservative.

"I think they’ll be looking for someone who is seen to share that agenda, or at least not to be antagonistic to that agenda," said Philip Girard, a professor at Dalhousie law school. "That’s a bit of a hard person to find in Atlantic Canada."

Were he to receive the next appointment to Canada's highest court, if would be a very happy and a very sad day, indeed. He would be very valuable addition to the SCC, no doubt about it. But he would be sadly missed from our Court of Appeal.

As one of my various jobs, I digest decisions from our courts and I can honestly say that I truly appreciate those written by Mr. Justice Cromwell. They are always well-written and logical and show a solid grasp of both the law and common sense.

And as an advocate in the field of special needs, I can tell you that no matter the bench, be it our Court of Appeal or the SCC, I would be happy to see any of our cases argued before this man. It would receive a very fair hearing. And that's really all you can ask for.

So, all the best to Justice Cromwell. Here's hoping you get that new appointment. And here's equally hoping that you don't.

Cross-posted at A Primer on Special Needs and the Law