Human Rights Board Chair Walter Thompson slams the door on 1,500 intellectually challenged Nova Scotians

“If I am speaking from a position of privilege and am ‘un-woke,’ then so be it.”

Acting as a one-man Human Rights Commission board of inquiry, Halifax Lawyer Walter Thompson ruled Monday the province discriminated against three Nova Scotians with intellectual disabilities by housing them in a locked, fenced unit of the Nova Scotia Psychiatric Hospital known as Emerald Hall when they qualified for humane community placements.

That’s good, right? It took forever, but a case of discrimination against Nova Scotia’s most disadvantaged citizens has been fixed.

Ah, but the inquiry chair giveth, and the inquiry chair taketh away. In his next breath, Thompson declared his decision will not apply to other developmentally challenged Nova Scotians who have been refused government services the Constitution entitles them to.

I am not persuaded, however, that the Province has… discriminated against disabled people… who are on a waitlist for placement in a community living service… No general rule may be applied… Each disabled person’s circumstances must, in my opinion, be assessed individually and then a decision made…”

Anyone else forced to live in inappropriate and damaging institutions, even after qualifying for community-based, small-options homes, will have to file their own, individual human rights complaints.

How many people are affected? Some 1,500 Nova Scotians with intellectual disabilities have been deemed eligible for placement in community-based, small-options homes, but can’t get one because the province imposed a moratorium on new small-options homes in 1995. Of these, 400 are living with ill or elderly relatives, and 1,100 are housed in inappropriate facilities such as that locked unit at the Nova Scotia Hospital.

How long will it take them to pursue the individual Human Rights litigation Thompson insists upon? The three complainants in this case—Beth MacLean, Joey Delaney, and Sheila Livingston—filed their complaints in July, 2014. MacLean and Delaney waited five years for bureaucrats, lawyers, and the board of inquiry to slog their way to a conclusion. Livingston died waiting, in October, 2016, at age 67, having spent 55 years in damaging, dehumanizing institutions.

Even now, the complainants do not have a final decision. A separate proceeding must still determine whether the discrimination Thompson found is saved by Section One of the Charter, which subjects citizens’ rights to, “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

I won’t presume to prejudge Thompson’s decision on that point, but one section of his decision gives pause. He heard and largely dismissed evidence from Catherine Frazee, a Professor Emeritus at Ryerson University and former Chief Commissioner of the Ontario Human Rights Commission. As summarized by Thompson,

Dr. Frazee said the research is clear that institutions… cause great physical and psychological harm. They are deeply dehumanizing. This not a controversial conclusion in the field of disability studies…. Dr. Frazee also says that only an ableist would consider it acceptable that disabled people live indefinitely with parents and not be able to live as a normal adult.

The problem, she says, is not that there are many people with immense needs; the problem is a policy which has inflicted harm, has perpetuated itself, and has become far more severe than it was at the beginning of the moratorium….

Dr. Frazee argues that it is inherently punitive to have people stuck in an institution or their parent’s basement. If there were a policy that effectively removed indigenous people, people would now understand that it is racist.

Thompson rejected this approach:

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.

He went on the praise the character and motivations of the officials who discriminated against the MacLean, Delaney, and Livingston.

Even if Thompson decides, months or years down the road, that Section One of the Charter does not permit the discrimination he found, his decision is worse than useless to the hundreds of Nova Scotians who suffer that discrimination.

To the 1,500 women and men with developmental handicaps whose lives have been devalued and distorted by provincial government ill-treatment, Thompson says, in effect: Get in line. The system will hear your complaints one at a time, in a process that enriches lawyers, inquiry chairs, and human rights bureaucrats, while denying funds that could correct the cruelty and damage our province has inflicted upon you.

Correction: As he does from time to time, Walter Thompson served as a one-person board of inquiry in this case. Inquiry boards are independent of the Human Rights Commission. The original version of this post referred to him incorrectly as a Commissioner.

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