The MJLH’s 7th Annual Colloquium: Dr. Archibald Kaiser on Mental Health Courts

Posted By Stephanie Hewson

Dr. Archibald Kaiser is a panellist at this Saturday’s Colloquium on the Not Criminally Responsible Reform Act. Dr. Kaiser is a professor at Dalhousie University in the Faculty of Law and an Assistant Professor in the Department of Psychiatry. Dr. Kaiser’s work focuses on the intersection of mental disability law with the criminal justice system.

Dr. Kaiser recently examined the “proliferation of mental health courts” across Canada. Mental health courts exist in most major urban centres in Canada as a means of diverting people with mental health issues out of the regular justice system, towards a “therapeutic conception of justice.” While Dr. Kaiser recognizes the commitment of lawyers, judges, social workers and mental health workers who staff mental health courts, he raises serious concerns about their role in perpetuating historical stigma, segregation and paternalism towards people with mental health issues.

Dr. Kaiser criticizes the coercive nature of the criminal justice system, even in the form of specialized courts, as a means of forcing treatment, including medication, on the accused. He writes that “mental health courts acquire the mantle of beneficence, but they function as another source of social control without addressing foundational issues.” Instead, Dr. Kaiser advocates for a rights-based approach to disability that focuses on self-determination, access to services and social inclusion.

The new Not Criminally Responsible Reform Act promises Canadians that “public safety comes first” on decisions about accused people found not criminally responsible or unfit to stand trial – indicating the continuation of segregation and social control, rather than movement towards disability rights and social inclusion. The MJLH is eager to hear directly from Dr. Kaiser on the implications of the Act on the future of mental health in Canada.

For more information on the MJLH Colloquium, and to read up on our other distinguished speakers, click here.

Drinking Water in First Nations Communities: Has Canada Breached its Fiduciary Duty?

Posted By Stephanie Hewson

Three years ago, the Attawapiskat First Nation in northern Ontario made headlines for the disastrous condition of housing, water treatment and sanitation on the reserve. Yet Attawapiskat is not unusual in Canada, and of the First Nations communities in Canada with little or no access to clean drinking water, its situation is not the most dire. In Pikangikum, Ontario, 80% of the community lacks sewage pipes or running water, and raw sewage from the community can flow directly into the lake. In Little Buffalo, Alberta, a Lubicon Cree First Nation of 225 people, there is no running water, and residents drive one hour each way to Peace River to buy bottled water.

Aboriginal Affairs and Northern Development Canada (AANDC) and Health Canada share responsibility with First Nations for the management of water on reserves. But the infrastructure on reserves for water and wastewater management is crumbling. As of February 2014, there were 135 drinking water advisories in 92 First Nations communities, which represent 15% of First Nation communities. According to the most recent national assessment of First Nations water systems, 66% of wastewater treatment centers on First Nations reserves are a high or medium risk to water quality and human health.

Critics argue that the federal government has transferred responsibility to First Nations without providing enough funding to ensure that drinking water on reserves would match the quality of off-reserve water.  In 2013, Parliament passed the Safe Drinking Water for First Nations Act. AANDCsaid the Act ensures reliable, safe drinking water on reserves by creating legal binding standards for water quality. The Assembly of First Nations, however, has criticized the government for imposing new responsibilities and costs – servicing needs across Canada are estimated at $4.7 billion – on First Nations without the resources to finance them.

Has Canada breached its fiduciary duty to First Nations? Four Alberta First Nations—Tsuu T’ina, Ermineskin, Sucker Creek and Blood First Nations—filed a claim against the federal government in July over the state of their drinking water. The plaintiff First Nations claim that Canada has breached its fiduciary duty under Treaties 6, 7 and 8 in its management of reserves by creating and sustaining unsafe drinking water conditions. Additionally, they claim Canada has violated of sections 7 and 15(1) of the Charter of Human Rights and Freedoms in light of Canada’s international legal obligations to provide access to safe drinking water.

The plaintiff First Nations claim that unsafe drinking water has had devastating consequences for the affected communities. Reserves without safe drinking water have higher incidences of gastrointestinal infections, skin infections, urinary tract infections and ear and eye infections. The water is often visibly polluted and unfit for non-drinking purposes, such as showering and washing clothing. Some community members have chosen to move off reserves in order to have reliable clean drinking water.

The plaintiff First Nations claim that Canada has violated section 7 of the Charter because of the physical, psychological and emotional harm caused by the inability to access safe drinking water. They also claim a section 15 violation because aboriginal people are a historically disadvantaged group, and claim that drinking water on reserves is unsafe compared to similarly situated off-reserve non-aboriginal communities, as well as federal employees assigned to work on reserves.

The United Nations General Assembly has stated that the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, two human rights agreements that Canada has ratified, include the right to water and sanitation. Will the Court recognize a right to clean water, and Canada’s duty to provide it? The health of Canadian First Nations and the viability of life on reserves hang in the balance.