Access to Justice at the Canadian Elder Law Conference
22 November 2019
By Krista James
With Sara Pon, Legal Research Assistant
Thank you to everyone who joined us last week for the 9th Canadian Elder Law Conference. It was a great turn out. Registrants came from as far away as Australia and Israel. Record numbers participated by webinar. Sponsorship allowed us to award registration bursaries to 21 people, including police officers, social workers, students and allies from non-profit agencies. Some of you were not able to attend the event joined the conversation about conference themes on Twitter. You can see the best ones in this Twitter Moment and under the hashtag #elderlaw2019.
This year’s conference, entitled Bridging the Gap: Elder law for Everyone, highlighted access to justice for older adults.
The Honourable Justice Cromwell’s Keynote
We were beyond thrilled that the Honourable Thomas A. Cromwell, former Supreme Court of Canada Justice, provided an opening address on the second day of the conference. Justice Cromwell noted that access to justice is a major issue today, and is a multi-faceted issue. Different people encounter different barriers. Access to justice can mean:
- Meaningful legal remedies;
- Courtroom physical accessibility;
- Availability of plain language legal information;
- Access to childcare;
- Culturally appropriate remedies; or
- Service availability in your first language.
Older adults face particular barriers to accessing justice. For example, the physical accessibility of the courthouses, transportation issues, cognitive changes, lengthy trial delays (particularly for people diminishing capacity), and vulnerability to abuse and undue influence.
Honourable Justice Cromwell noted that “transformative justice is urgently needed.” He questioned why access to justice is not improving in Canada despite decades of excellent work developing reports which identify the problems. He suggested that one answer is that our leaders do not recognize the need for change. He spoke to a need for public and political desire for change. He challenged the diverse groups working on access to justice to come together to create an access to justice movement that will be a “unified force for change”.
Panel Discussion of Human Rights for People Living with Dementia
Day 2 featured a panel discussion in human rights for people living with dementia, moderated by Emily Clough, a partner at Clark Wilson LLP.
- Mario Gregorio, a person living with dementia, shared with the audience his experiences of living with dementia, noting people living with dementia need to know their rights.
- Jane Meadus, a lawyer with Ontario Advocacy Centre for the Elderly (Toronto), explained that people living with dementia face misconceptions about capacity, paternalism, improper informed consent, and discrimination in accessing health care. People living with dementia often lack access to legal advice.
- Barbara Lindsay, the Director of Advocacy and Education for the Alzheimer Society of BC, outlined the services they provide to people living with dementia, including dementia education, resources and support groups. Lawyers and notaries can better help people with dementia by taking their time during meetings, having patience, and creating a accessible and supportive environment.
- Laura Track, a lawyer with the BC Community Legal Assistance Society, described her office’s Human Rights Clinic and the BC Human Rights Tribunal’s latest on supporting representative complainants who may have capacity issues.
Creating a Guardianship Tribunal: Anne-Isabelle Cloutier
Anne-Isabelle Cloutier, the recipient of the Gregory K Steele Student Paper Prize in Elder Law (sponsored by Clark Wilson LLP), presented her paper on the potential of creating a guardianship tribunal for Canada. She argued that the current guardianship regime often fails to uphold principles of presumption of capacity and respect for autonomy, and instead defers to medical and psychosocial assessments which fail to recognize the rheostat nature of capacity. She explained that a guardianship tribunal would better be able to protect rights because tribunal members would have specialized training on capacity and be more sensitive to the needs and rights of vulnerable adults.
Capacity to Retain and Instruct Counsel
Returning Canadian Elder Law Conference Alumnist Clare Burns presented with Kevin Love of BC Community Legal Assistance Society. They discussed the legal, ethical and practical issues related to representing adults who may have capacity issues. The session covered recent court decisions of note and identified strategies lawyers can employ in order to more effectively advocate for their clients who have disabilities that can impact their capacity to understand information and make decisions.
To find out more about our conference and read interviews of some of our presenters, visit CCEL’s conference webpage. Our conference partner, the Continuing Legal Education Society of BC, will replay the conference sometime in 2020, providing those of you who missed this fabulous learning opportunity, with the chance to catch up.
Thanks to presenters, sponsors, registrants, and of course, our conference Chairs, Jan Goddard, Hugh McLellan and Geoff White.