DAWN Ontario: DisAbled Women's Network Ontario

Autism Court Ruling

NDP Response


McGuinty Autism Policy Violates Charter Of Rights:

NDP Press Release, April 4, 2005


Questions Raised in the Ontario Legislature on April 4, 2005

Questions raised by Howard Hampton, MPP and NDP Leader

Questions raised by Peter Kormos, MPP for Niagara Centre,
and Michael Prue, MPP for Beaches-East York

Questions raised by Andrea Horwath, MPP for Hamilton East and Children's Issues Critic,
and Rosario Marchese, MPP for Trinity-Spadina and Education Critic

Questions raised by Shelley Martel, MPP and NDP Health Critic

 

 


McGuinty Autism Policy Violates Charter Of Rights

NDP says premier should stop denying kids
IBI (intensive behavioural intervention) treatments

NDP Press Release dd April 4, 2005

 

NDP MPP Shelley Martel says it's time Dalton McGuinty stopped denying autistic children treatment they need - a practice courts say violates children's constitutional rights and human dignity.

"Denying autistic children treatment may suit Dalton McGuinty, but it doesn't suit the Charter of Rights and Freedoms," the NDP Critic for Health and Long-Term Care said.

"It's time the premier stopped violating autistic children's constitutional rights and human dignity and started providing treatment for all who need it."

Friday, the Ontario Superior Court ruled the McGuinty government is discriminating against children with autism. Madam Justice Frances Kiteley found the government's practice of cutting off IBI treatment for children over age 6 violates Charter of Rights protections against discrimination based on age and disability.

"I find that the age cutoff reflects and reinforces the stereotype that children with autism over age 6 are virtually unredeemable," Judge Kiteley said. "To deny the plaintiff children the opportunity to have [treatment] after the age of 5 is to stereotype them, to prejudice them and to create a disadvantage for them."

Judge Kiteley continued: "The absence of ABA/IBI means that children with autism are excluded from the opportunity to access learning with the consequential deprivation of skills, the likelihood of isolation from society and the loss of the ability to exercise the rights and freedoms to which all Canadians are entitled."

Judge Kiteley called the case histories of families who launched the court case "heartbreaking." She said the McGuinty government's age-six autism cut-off "undermines the integrity of the government."

Martel called on the premier to reconsider his decision to appeal the decision, keep his election promise to stop the "unfair and discriminatory" cut-off and "[extend] autism treatment beyond the age of six."

"Dalton McGuinty wasted taxpayer money on a court battle and made autistic children and their families suffer so he could break a promise," Martel said. "The premier should call off his lawyers and extend IBI treatment to all children who need it - like he promised."



The following Questions were raised
by Howard Hampton, MPP and NDP Leader,
in the Ontario Legislature on April 4, 2005



AUTISM TREATMENT

Mr. Howard Hampton (Kenora-Rainy River): My question is for the Premier. During the election, you promised to extend IBI autism treatment to children over age six. In fact, I can quote you. You said, "I ... believe that the lack of government-funded IBI treatment for autistic children over six is unfair and discriminatory." And you said, "The Ontario Liberals support extending autism treatment beyond the age of six." But after the election, you broke your promise and denied autism treatment to children over six. Now the Superior Court of Ontario has ruled that your denial of autism treatment violates the Charter of Rights and Freedoms.

Premier, those children and their parents are here today. You promised autism treatment, IBI treatment. How can you now justify dragging them back through the court system again while you appeal a court decision that says you're violating the Charter of Rights and breaking your own promise? Tell them how you justify that.
Interruption.

The Speaker (Hon. Alvin Curling): We welcome guests to Parliament, but we ask you not to participate by clapping or applauding in any way.

Premier?

Hon. Dalton McGuinty (Premier, Minister of Intergovernmental Affairs): To the Attorney General, Speaker.

Hon. Michael Bryant (Attorney General, minister responsible for native affairs, minister responsible for democratic renewal): I think it's fair to say that every single member of provincial Parliament in this House has enormous concern and sympathy for the challenges facing autistic children and their families. We believe the government of the day needs to have the flexibility to provide the kind of programs that will permit improvement in terms of the assistance to autistic children. We feel that it is for the government in the Legislature to do that, and therefore we will continue to provide those improvements, provide that assistance. We will do that through the Legislature, we will do that through government, and we will be appealing the decision on that basis.

Mr. Hampton: Apparently, the Premier finds it is easier to make promises than to keep those promises.

I just want to recite some of what Madam Justice Kiteley had to say. It's a very lengthy decision. It considered months of evidence; it looked at all of the scientific evidence. This is what she has to say:

First of all, she says you are violating the constitutional rights of these autistic children. What's more, she says you are violating their "human dignity" by denying them the treatment they need to cope and to thrive as individual human beings. In her decision, she calls your discrimination against autistic children "heartbreaking," and says that your failure to live up to your responsibilities and your promise, Premier, to provide the help that they need, the help for these most vulnerable of Ontarians, "undermines the integrity" of your government.

Premier, you found it easy to make promises before the election. Tell these children, these vulnerable children whose rights you are violating, why you're going to drag them through the court again and defend your violation of the Charter of Rights and Freedoms.

Hon. Mr. Bryant: This government feels that we are taking the approach that is in the best interests of all autistic children across the province of Ontario. The Supreme Court of Canada held just last November that governments need the flexibility to design programs that are in the best interests of autistic children and that the courts are not in a position to do that.

The question is, do we have courts determine a specific treatment, or do we have governments undertake programs that include a reduction of waiting lists for assessment by more than 70%, that see 25% more children receiving IBI therapy under this government and that see a new program for all school-aged autistic children? This government has put in place those programs. We feel that is the best approach. That's why we believe that the law of Canada has been ruled upon by the Supreme Court of Canada, and as a result we intend to appeal the decision.

Mr. Hampton: The McGuinty government can make up all kinds of excuses now. Madam Justice Kiteley looked at the situation here in Ontario, she looked at the situation under your government and she is very critical of everything you've tried to trot out as an excuse today.

She ruled that you are denying autistic children the treatment that they deserve after age six for no scientific reason. She said you're discriminating against these children based on their age, with absolutely no justification for that discrimination, again contrary to the Charter of Rights and Freedoms. She said, "I find that the age cut-off reflects and reinforces the stereotype that children with autism over age six are virtually unredeemable," and that "To deny the plaintiff children the opportunity to have [treatment] after the age of five is to stereotype them, to prejudice them, and to create a disadvantage for them."

I say again to the Premier, who made the promise, tell these children now why you intend to defy this court, defy this well-considered judgment by this judge and defy your own promise to these children.

Hon. Mr. Bryant: Madam Justice Kiteley also held that the preschool program for autistic children in Ontario today is exemplary. Over a thousand children were on a waiting list for assessment a year ago. We've reduced that waiting list for assessment by more than 70%. We've increased the number of children in Ontario who are receiving IBI treatment by 25%. We have programs that we are putting forward in schools that had never existed before in Ontario. We feel that that is in the best interests of all autistic children in Ontario and their families. We feel that it is a dramatic improvement over the past government's performance, and we will continue in the courts to defend our ability to deliver those kinds of programs so that we can provide more assistance to autistic children in the province.

The Speaker: New question.

Mr. Hampton: To the Premier: The Attorney General is trying to deflect this whole issue, trying to argue that it's something about five-year-olds. No, Premier, this is about your promise. You said that ending IBI autism treatment at age six was discrimination. You said it was wrong; you said it was unfair. This is what Madam Justice Kitely says: "Without IBI treatment, the plaintive children are deprived of the skills they need for full membership in the human community. That child's isolation from society and lack of skills mean that she or he cannot participate in society and cannot exercise the rights and freedoms to which all Canadians are entitled." You see, Madam Justice Kitely agrees with you: It's discrimination, it's not justified, it's wrong. All these children want, and all Madam Justice Kitely wants, is for you to do the right thing: Live up to your promise. Live up to what the scientific evidence shows. Refuse the advice of your Attorney General and don't appeal this. Will you do that, Premier?

Hon. Mr. McGuinty: To the Attorney General, Speaker.

Hon. Michael Bryant: I'm surprised to hear that from a former Attorney General that he would ask for the politicization of a decision on a particular appeal, that he would ask that we in fact should have politics that determine the position we take before the courts. Maybe that's what you did when you were Attorney General, but that's not what we do in this government. We feel that we need to continue to do what --

Interjections.

Mr. Jim Flaherty (Whitby-Ajax): It's the government's decision, Mr. Speaker. He's misleading --

The Speaker: Order. I ask the member for Whitby-Ajax to withdraw that comment.

Mr. Flaherty: I withdraw it.

Hon. Michael Bryant: The question is whether or not -- as the Supreme Court of Canada held last November -- legislatures and government are in the best position to design programs that are in the interests of autistic children, or whether the courts, based upon the evidence of particular litigants before them, are in fact in the best position to do that. The court said that it's up to the government. The government is putting forward substantial improvements for preschool and school-aged autistic children, and that is what we committed to do. We're providing those improvements. I will continue before the courts to defend the ability of this Legislature to conduct that kind of business that, again, we feel is in the best interests of autistic children in Ontario.

Mr. Hampton: This is what Madam Justice Kitely had to say about some of these programs that the McGuinty government now wants to laud. Madam Justice Kitely said, "The Minister [of Education's] duty is to ensure that appropriate special education programs and special education services are provided ... without payment of fees." She ruled that the Minister of Education violated the Education Act, and said, "The minister failed" -- he failed -- "to respond to the needs of children with autism." He failed "to develop policy and give direction to the school boards to ensure that ... IBI services were provided to children with autism in schools." He failed by creating "systemic barriers to children with autism accessing learning." Just about everything you've tried to pronounce on here today Madam Justice Kitely considered here in Ontario, and she said you're violating the Charter of Rights and you're denying these children the services they should receive in terms of equality of access.

When, Premier, are you going to live up to your promise and respect the Charter of Rights?

Hon. Mr. Bryant: No member of this House has a monopoly on compassion and sympathy for this particular issue, I say to the member. We in this government are moving forward with substantial improvements and programs for the treatment of autistic children.

The legal issue that has just been articulated by the leader of the NDP has also been considered by the Supreme Court of Canada, and the Supreme Court of Canada said last November, on the subject of the provision of specific treatment programs for autistic children, that it isn't for the courts to determine that; that the government and the Legislature are in the best position to determine that. That's what this case is about.

We will stand behind our record in terms of the assistance, the lowering of waiting lists, the increased treatment of autistic children and the provision of new programs that had never existed before through a public school system, and we'll continue before the courts to make sure that we have the flexibility to do that, because we believe that's in the best interest of Ontario families.

Mr. Hampton: I want to speak about integrity. I want to speak about the integrity of someone who would write to the parent of an autistic child and say, "I also believe that the lack of government-funded IBI treatment for autistic children over six is unfair and discriminatory. The Ontario Liberals support extending autism treatment beyond the age of six." I want to ask about the integrity of someone who would say that during an election campaign to the mother of an autistic child and then, right after the election campaign, deny that you said it, deny the service, and now, when the Superior Court of Justice in Ontario rules that are you discriminating against these children, try to run and hide from that. I want to ask about the integrity of someone who does that.

Hon. Mr. Bryant: We have increased treatment by 25%. We have lowered waiting lists by more than 70%. We have provided new programs for all school-aged autistic children. The purpose of that was to provide improvements. Our commitment was better public services, better services for autistic children, and that's what we are trying to do in this government.

This case is before the courts. We are appealing the ability of the government to deliver upon its commitment to improve services for autistic children, and we will continue to do that.



The following Questions were raised
by Peter Kormos, MPP for Niagara Centre,
and Michael Prue, MPP for Beaches-East York,
in the Ontario Legislature on April 4, 2005



AUTISM TREATMENT


Mr. Peter Kormos (Niagara Centre): Premier, when young Cameron Walsh down in Welland was diagnosed with autism, he was put on the waiting list for government-funded IBI treatment. When he turned six, he still hadn't reached the head of the line, and he was told that he was no longer eligible. His parents, Leo and Sheri, purchased IBI treatment at a cost of $2,800 a month, but the bank account finally ran dry. There's no more credit. They've literally used all of their credit, all of their credit cards, every available penny, every bit of resources made available to them by relatives and raised during the course of fundraisers and their son now doesn't receive IBI. Of course, they believed you during the last election campaign when you promised that their son Cameron would get IBI treatment.

The Speaker (Hon. Alvin Curling): Question?

Mr. Kormos: Why are you not prepared to keep your promise to Leo and Sheri Walsh and their boy Cameron?

Hon. Dalton McGuinty (Premier, Minister of Intergovernmental Affairs): To the Minister of Children and Youth Services.

Hon. Marie Bountrogianni (Minister of Children and Youth Services, Minister of Citizenship and Immigration): We have worked very tirelessly on reducing the wait list for children so that they don't age out, so that they do get the IBI treatment they need under the age of six, and that has resulted in a 25% increased number of children who are receiving IBI treatment.

As well, we worked very hard on the number of assessments for children awaiting IBI treatment. There is a 72% reduction in the wait list for assessments. We're working as fast as we can. We understand this is very difficult for the families, but we are determined to help these families.

The Speaker: Supplementary.

Mr. Michael Prue (Beaches-East York): My question is again to the minister.

Madam Minister, you will remember that about two months ago I stood in this House and talked about Michelle Quance and her wonderful four-and-a-half-year-old daughter Tennyson.

On this historic day, the day when the Ontario Superior Court has upheld and fortified the argument we have made so many times on this side of the House, that the lack of IBI treatment for Ontario's autistic children is immoral, you also know it is unconstitutional and it is illegal.

Madam Minister, you will remember that Tennyson was diagnosed with autism last June and, since that time, her family has been forced to raise thousands of dollars from their neighbours and to mortgage their house. You will know that the family is spending $6,600 a month trying to get that very same treatment that your government promised. I recently found out that she's gone all the way from 10th on the list to second -- one space a month. Will you please tell this family, and all the other Ontario families with autistic children, that you can and will set up their IBI treatments today, not next year, in line with what the court has said?

Hon. Mrs. Bountrogianni: We are working as quickly as possible. We've hired over a hundred new therapists in less than eight months to deal with this crisis.

I agree with the member opposite that it is difficult for the parent of that four-year-old to wait. But as I know the honourable member understands, he would not want any child to bump any other child on a wait list. That's not the solution. The solution is to build capacity so that we eliminate the wait list. That's what we're determined to do, and we're well on track in meeting that goal.

 

The following Questions were raised
by Andrea Horwath, MPP for Hamilton East and Children's Issues Critic,
and Rosario Marchese, MPP for Trinity-Spadina and Education Critic,
in the Ontario Legislature on April 4, 2005

 

AUTISM TREATMENT

Ms. Andrea Horwath (Hamilton East): My question is for the Premier. I have a message from Dave and Cathy Davies of Hamilton East. They want you to obey the court and end your discrimination against autistic children in Ontario aged six and over. The Davies want you to ensure that autistic children, regardless of their age, receive the medically necessary IBI treatment they need. The Davies' son, Jordon, turns 13 in June. He was never able to access government-funded IBI. The court says today that you cannot legally deny Jordon treatment any longer.

Will you look at these people here today, and will you tell Dave and Cathy Davies of Hamilton East that you will heed the court's decision? Will you listen to the pleas from parents like Mr. and Mrs. Davies, or will you prolong the suffering of autistic children and their parents' anguish by depriving the children of the treatment they need to function in life? Will you continue to force their parents into decisions about their care that no parent should be expected to make in the province of Ontario?

Hon. Dalton McGuinty (Premier, Minister of Intergovernmental Affairs): To the Minister of Children and Youth Services.

Hon. Marie Bountrogianni (Minister of Children and Youth Services, Minister of Citizenship and Immigration):
We understand that this is a difficult issue for the families. My colleague the Attorney General has already stated that he's appealed the decision. The government is reviewing the implications of the decision and what this means to programming.

What we have done for the children under six is try to get, as much as possible, the IBI treatment for them so they can then generalize their skills when they reach school age. I understand that this young person may not have received IBI because of his being 13 and it's a relatively new program. But what we had, even before our government, in Hamilton -- I worked in the Hamilton board of education; I'm not sure which of the two boards of education the young person attends, but there are programs in both for children with autism. As well, we have just instituted a new education program of resource people going into boards across the province, because, quite frankly, there were gaps --

Interjection.

Hon. Mrs. Bountrogianni: I know the member from Nepean-Carleton knows there were gaps. In northern Ontario, for example, there was nobody there. We have instituted a program that will begin to close those gaps across the province.

The Speaker (Hon. Alvin Curling): Supplementary.

Mr. Rosario Marchese (Trinity-Spadina): Adam Shane of Mississauga is here today, and he needs intensive behavioural intervention in order to attend school. His teacher, his special education teacher and his principal all agree that IBI therapists should be allowed into the classroom. The Peel District School Board said no; therefore he cannot get IBI at school. At the same time, in September, Erin Oak, the centre for developmentally challenged children, gave Adam more hours of treatment but also changed their hours of operation. So to access the additional treatment, his mother, Lynn, who's here today, has to pull him out of school two afternoons a week to attend Erin Oak.

In her ruling, Justice Kiteley said that you have failed to "develop policy and give direction to the school boards to ensure that ABA/IBI services are provided to children with autism in schools."

Minister, when will you assume the responsibility and the social obligation you have as a government and ensure that Adam and other autistic children like him receive the widely hailed IBI treatment in school?

Hon. Mrs. Bountrogianni:
The Minister of Education.

Hon. Gerard Kennedy (Minister of Education): We have in education right now an outlook on special-needs children; that is, $365 million dollars in more resources, 65% more resources in the last two years. Children with recognized exceptionalities include almost 7,000 children with autism and spectrum disorder. We have around $130 million worth of services directed to those children today. Independent of what happens in terms of the courts, we are determined to provide the best educational services possible. We are in the process of an overall review of special education right now and we are providing the additional resources right now, as we speak, into those schools.

It is our intention to provide for children with special needs in the province. We've been doing that in an accelerated fashion and we're going to continue to do that, because we accept the responsibility we've always had.


 

The following Questions were raised
by Shelley Martel, MPP and NDP Health Critic
in the Ontario Legislature on April 4, 2005



AUTISM TREATMENT

Ms. Shelley Martel (Nickel Belt): I have a question to the Premier. I want you to meet some of the parents and children who are part of the Wynberg and Deskin lawsuit. They're in the gallery today. They are Robyn and Simon Wynberg, Tammy Starr and Arthur Fleischmann, Perry Taylor, Richard Marcovitz and Sheila Laredo, Suzanne Wetzel, Brenda Lumsden-Johanson, Maria Velasquez, Susan Elsworthy, Natoma Houston and Benjamin, and Cindy, Jordan and Anthony Faria. Eleven-year-old Anthony even testified in court about how IBI had helped him.

For the past five years, these families have waged a court battle against the previous government and against your government to try to get the services their children need. They've mortgaged or sold their homes, borrowed heavily from family members, held community fundraisers and faced financial ruin, all to try to pay for IBI for their children and the legal costs to get what they need for their children. At long last, the court has ruled in their favour.

Premier, don't abuse these families any more. Do what you promised in the last election. Tell these children and these families you will not appeal this decision. What's your answer, Premier?

Hon. Dalton McGuinty (Premier, Minister of Intergovernmental Affairs): The Attorney General.

Hon. Michael Bryant (Attorney General, minister responsible for native affairs, minister responsible for democratic renewal): I'm not sure that this was a question, but obviously the government will continue to comply with the order that has been in place that will see the 30 families that are the subject of this particular action continue to receive the treatment pursuant to the order. That will continue. If that was the member's question, then of course we will be complying with that order.

Ms. Martel: They were paying for the treatment long before Justice Kiteley finally had to rule your government in contempt and force payment for treatment. That only happened in the last number of months, and you know it, Attorney General.

I want to remind the Premier, though, of the promise he made in the last election. He said, and I quote again, "I also believe that the lack of government-funded IBI treatment
for autistic children ... is unfair and discriminatory. The Ontario Liberals support extending autism treatment beyond the age of six."

Well, Justice Kiteley agrees with you, Premier. She found that the lack of IBI for children over six is discriminatory, has violated the constitutional rights of autistic children and must end. The parents won, Premier. You lost, and your government should get over it. It would be unconscionable for you now to drag these parents and other parents through the court one more time. Keep the promise you made during the election. Tell the parents you'll agree and respect this ruling. Tell them you'll provide the services their children and other autistic children need. Will you do that today, Premier?

Hon. Mr. Bryant: There are, of course, a number of matters that are before the courts. It goes without saying that we will continue to take the position that the Supreme Court of Canada has articulated, which is that governments and Legislatures should be in a position to fight for autistic children, not a judge with a particular case. I would anticipate that if the result had been otherwise, the parties in this matter would have also appealed on the other side of this matter.
Our position has been that governments and the Legislature should have the --

Ms. Martel: It's shameful. Your position is absolutely --

The Speaker (Hon. Alvin Curling): Order. Could I ask the member from Nickel Belt to come to order, please.

Ms. Martel: It is. It's unconscionable that you're going to drag these parents through the courts one more time.

The Speaker: Order.

Interjections.

The Speaker: I'm going to ask the member from Nickel Belt to come to order.

Ms. Martel: No, Speaker, I'm sorry. Shame on this whole government. They made promises to win the election that were good enough to get their votes, and now, after the election, what do they do? Discrimination, one more time. How much taxpayers' money are you going to spend? What's wrong with you people? Look at yourselves in the mirror. Look at them.

Interjections.





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