Autism Reality

FAMILIES TO TAKE AUTISM CASE TO SUPREME COURT OF CANADA

YAHOOOOOOOOOOOOOOOOOOOOOOOOO!!! The families in the Deskin Wynberg case will seek leave to appeal to the Supreme Court of Canada.

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FAMILIES TO TAKE AUTISM CASE TO SUPREME COURT OF CANADA

Thirty five Ontario children affected by a Court of Appeal decision are taking their case to the Supreme Court of Canada. The families, who had won their case at trial, say that the Ontario Court of Appeal made several errors in its judgment this summer.

In papers filed with the Supreme Court of Canada, the families say the Court of Appeal was wrong to reject their claim that Ontario discriminated against their children on the basis of age and disability. The families say that the Court of Appeal was wrong to overrule the factual findings of the trial judge and that the Court of Appeal was wrong to find that the government’s discrimination was justified by budgetary concerns.

In their written application to the Supreme Court of Canada, the families set out the following specific grounds:

(1) Did the province’s failure to provide intensive behavioural intervention to school-aged children—where it has decided to provide such intervention for pre-school aged children—violate the equality rights of the infant claimants on the basis of age or disability?

(2) Can a province use age as a marker to determine the end of eligibility for a service when scientific evidence emphasizes the need for individual clinical determinations of when to cease provision of the service?

(3) Must a claimant prove the existence of a separate stereotype pertaining to his or her age group when that group is shown to suffer from continuing application of a stereotype about a broader group, which is no longer applied to a small age-identified segment of the broader group which does not include the claimant?

(4) What factors will take a putative targeted ameliorative program out of the protection of Lovelace?

(5) Should a claimant be granted leave to adduce new evidence on the comparator group when the Court decides to use a different comparator from that advanced by the claimant?

(6) Are the liberty and security of the person of the claimants under section 7 engaged where the state intervenes to provide a service, which impacts on the dignity, autonomy, and ability of an individual to participate in society, and then withdraws that service in a way harmful to the claimants?

(7) Do the tests set out in Housen and H.L. apply to the appellate review of a trial judge’s factual findings in Charter claims, and do the reasons of the plurality of this Court in Chaoulli v. Quebec (Attorney General) leave open the question whether a different standard applies in the Charter context for appellate review of finding of fact?

(8) Do claimants alleging adverse effects discrimination need to present systemic data and statistics or is it sufficient to ground their claim in evidence of how legislation or government action affects them through their own viva voce testimony and through the evidence of expert witnesses?

(9) Under what circumstances can the government rely on the allocation of scarce resources as a justification for a Charter infringement arising from the exclusion of a disadvantaged group from an ameliorative program?

(10) Can the executive rely on its own structural barriers in order to defend against a constitutionally mandated duty?

(11) Should section 1 be available as a matter of course to justify a breach of the Charter arising from government action under a statute conferring discretion, even where the executive has not complied with the guiding principles of the statute?

(12) Is it appropriate to combine declaratory relief and an award of discrete special damages for unconstitutional governmental action (as distinct from legislation) under section 24(1) of the Charter?

Background

These cases were tried before Justice Kitely at the Ontario Superior Court of Justice between April, 2003 and March, 2005. On March 30, 2005, the trial judge issued a 200-page judgment finding that Ontario had discriminated against these autistic children. The government challenged the decision in the Court of Appeal. The appeal was argued in the Court of Appeal for a week in December, 2005. The Court of Appeal released its reasons on July 7, 2006 agreeing with the government and overturning the trial judge’s decision.

On November 8, 2006, the families filed their application for leave to appeal to the Supreme Court of Canada. In the normal course, the Government of Ontario will have 30 days to file its written response.

The Supreme Court of Canada will consider whether to hear the case based on the written materials. There is no timetable for the release of the Supreme Court of Canada’s decision on the leave request, but typically such applications are dealt with within 3 to 6 months of their submission to the Court.


The families are represented by:

Stockwoods LLP
Barristers
The Sun Life Tower
150 King Street West, Suite 2512
Toronto, ON M5H 1J9

Scott C. Hutchison
Owen M. Rees

Tel: 416-593-7200
Fax: 416-593-9345
ScottH@stockwoods.ca

OwenR@Stockwoods.ca

Counsel for the Deskin Family

Law Office of Mary Eberts

P.O. Box 19047
Station Walmer

Toronto, ON M5S 1X1

Mary Eberts
Kasari Govender
Tel: 416-966-0404

Fax: 416-966-2999

Eberts@ebertslaw.ca
Govender@ebertslaw.ca

Counsel for the Wynberg Families

For further information, contact:

Brenda Deskin
brenda@deskin.ca
Tel: (289) 439-6003

For the Deskin Family

Tammy Starr
tamstarr@rogers.com
Tel : (416) 488-1764
Cell: (416) 407-7819

For the Wynberg Families

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November 8, 2006 Posted by | Uncategorized | 1 Comment

Will Premier Graham Give Autistic Children the McGuinty Treatment?

In a comment this morning I reported on the pressure being exerted by bureaucrats on Education Minister Lamrock to break the pledge made by then opposition leader Shawn Graham during the election campaign – to provide autism specific training at UNB-CEL to 100 Teacher Assistants and Resource teachers a year for the next four years. If Premier Graham and Minister Lamrock cave in to the bureaucrats they will be going along with the same department which has resisted all attempts to include autistic children in a real learning experience during the past seven years. They will also be replicating the actions of Ontario Liberal Premier Dalton McGuinty.

Seeking election as Premier Mr. McGuinty promised Ontario parents in writing that he would, if elected, lift the 6 year age cap on funded autism treatment. Once elected the good Premier reversed himself and even fought parents in court to who were arguing to have the cap lifted on the grounds of age and disability discrimination. Eventually the cap was lifted somewhat but the ABA therapists necessary to implement the ABA therapy which is crucial for so many autistic children to learn were not permitted to enter the school system for that purpose.
It is not clear yet whether the Shawn Graham Liberal government will capitulate to the bureaucrats and break the Premier’s pledge to the Autism Society and to Autistic children but the Liberals are clearly wavering. It seems that when it comes to breaking campaign pledges autistic children are seen as easy pickings for bureaucrats at least. Hopefully Premier Graham and Minister Lamrock do not give autistic children in New Brunswick the McGuinty Treatment.

November 8, 2006 Posted by | Uncategorized | 1 Comment

Will Bureaucrats Convince Liberals to Break Autism Pledge?

The Liberal party pledged during the recent election to provide UNB-CEL Autism Intervention Training to 100 Teacher Assistants and Resource teachers a year for the next 4 years. Now though it appears that Department of Education bureaucrats are trying to push the Minister of Education to break that very specific pledge by promoting a variety of alternatives to the Minister. These alternatives essentially include options such as requiring persons applying to work as TA’s with autistic children to have obtained the training on their own or having the training provided by the Department itself even though the Department lacks the expertise to provide proper training. This is the same department which has resisted for several years efforts by the ASNB to have the Department provide effective education interventions for autistic children by trained personnel for several years. The bureaucrats’ strategy also includes by passing the provincial Autism Society New Brunswick in setting up education workshops for autistic children even though the Department regularly consults disability organizations when those organizations are in agreement with the Department. If past experience is a guide the Department will also adopt a divide and conquer strategy and try to sow dissension within the autism community. Their strategy is already under way. In a meeting this week with ASNB representatives Minister Lamrock preferred to characterize the Liberal pledge as a “raising of expectations in the autism community” as opposed to having made a commitment.

The express pledge made by then Opposition Leader Shawn Graham during the election campaign was set out in an email to Autism Society New Brunswick President Lila Barry:

From: Graham, Shawn (LEG)
Sent: Wednesday, September 06, 2006 2:37 PM
To: lila barry
Subject: Liberal Platform

Dear Ms. Barry:

Thank you for your letter and for sharing your concerns with me. In our Liberal election platform that will be released this week, we are committing to the implementation of the recommendations of the Interdepartmental Committee on Autism released in November 2001. Although we realize this document is now nearly five years old, it does provide a basis on which to develop, in partnership with the stakeholders, a strategy that will assist children with autism from early childhood and into adulthood.

As well, we will take two concrete steps to address the immediate needs of children with autism in two areas: a case management process and UNBCEL autism training.

A new Liberal government will:

1. Integrate services for young children and their families by enhancing and expanding the Early Childhood Initiatives Program to ensure a smooth transition into public school for children identified as at risk or those with special needs, such as autism.


2. Provide UNBCEL autism training for 100 additional teaching assistants and Methods and Resource teachers each year for four years.

I commend you and the members of the Autism Society of New Brunswick on your tireless advocacy on behalf of children with autism. You are truly making a difference in many lives. Please feel free to contact me at any time.

Yours truly,

Shawn Graham

Leader of the Official Opposition

The Autism Society New Brunswick recommended that its members, friends and family members of autistic persons vote Liberal during the recent very close election. It did so because of this very specific commitment from then Opposition Leader Shawn Graham. Now that Mr. Graham is Premier it is expected that he will keep his word and honour the pledge that he made to the ASNB and to autistic children. Education Minister Lamrock is under intense pressure by department bureaucrats to dishonour that commitment.

We shall see what happens.

November 8, 2006 Posted by | Uncategorized | 1 Comment

Researchers Link Industrial Chemicals with Autism, ADHD

A study by two researchers published in the British medical journal, the Lancet, argues that industrial chemicals may be causing a worldwide pandemic of brain disorders including autism.

http://www.cbsnews.com/stories/2006/11/07/health/webmd/main2161153.shtml

(WebMD) Exposure to industrial chemicals may be responsible for a “silent pandemic” of brain development disorders affecting millions of children worldwide, and not enough is being done to identify the risks.

That is the contention of two researchers who have studied the effects of chemical exposures on brain development for many decades.

In an essay published online in the journal The Lancet, the researchers identified 202 potentially harmful industrial chemicals that may be contributing to dramatic increases in autism, attention deficit hyperactivity disorder (ADHD), and other brain disorders among children.

Roughly half of the chemicals are in common use, but very few have been tested to determine their impact on brain development.

“The bottom line is you only get one chance to develop a brain,” Philippe Grandjean, M.D., of the Harvard School of Public Health, tells WebMD. “We have to protect children against chemical pollution because damage to a developing brain is irreversible.”

Tip of the Iceberg

Grandjean and co-author Philip Landrigan, M.D., of New York’s Mount Sinai School of Medicine, noted that of the industrial chemicals known to be toxic to the human brain, only five — lead, mercury, arsenic, PCBs, and toluene — have been proven to cause damage to the developing brain.

These chemicals have been identified not because they are necessarily more dangerous than the others, but because they have been studied the most, Grandjean and Landrigan contend.

“The few substances proven to be toxic to human neurodevelopment should be viewed as the tip of a very large iceberg,” they wrote.

Grandjean spent decades documenting the toxic effects of mercury exposure on the developing brain, and Landrigan spent decades studying the effects of lead exposure in children.

Lead and mercury are among the few chemicals that are now strictly regulated to protect children. But regulation came long after the dangers were first recognized.

Lead-based paint was first linked to sickness in children more than a century ago, but lead was not removed from paint and gasoline in the U.S. until the late 1970s and early 1980s.

“Despite those early pediatric warnings, the largely unchecked use of lead in petrol, paints, ceramic glazes, and many other products through much of the twentieth century caused continued risk of lead poisoning,” the researchers write.

A Generation Exposed

Almost all children born in industrialized countries between 1960 and 1980 were exposed to substantial amounts of lead from gasoline. The researchers write that lead exposure in this population could be responsible for a substantial reduction in average IQ scores.

“A generation of American children was exposed to this very dangerous neurotoxin while we were doing traditional risk assessment,” Grandjean tells WebMD. “We can’t afford to make the same mistake again.”

Annette Kirshner, Ph.D., of the National Institute of Environmental Health Sciences (NIEHS) agrees that more expeditious ways of identifying chemical exposures that put children at risk are needed.

The prevailing thinking among researchers studying autism and ADHD is that both genetic and environmental factors play a role in the childhood brain disorders.

“There is still no good evidence linking any single environmental exposure to autism and ADHD,” Kirshner tells WebMD. “It will probably require a global effort to understand the combination of factors that lead to these disorders.”

But Grandjean and Landrigan argue that exposure to industrial chemicals appear to have created a “silent pandemic in modern society.”

“Although these chemicals might have caused impaired brain development in millions of children worldwide, the profound effects of such a pandemic are not apparent from available health statistics,” they wrote.

SOURCES: Grandjean, P. and Landrigan, P.J. The Lancet, Nov. 8, 2006; Vol. 368: online edition. Philippe Grandjean, M.D., department of environmental health, Harvard School of Public Health, Boston; Annette Kirshner, Ph.D., health science administrator, National Institute of Environmental Health Sciences.

By Salynn Boyles
Reviewed by Louise Chang
Copyright 2006, WebMD Inc. All rights reserved.

November 8, 2006 Posted by | Uncategorized | Leave a comment