Landin Webb

Time to throw out incompetency act

ARCHIE KAISER
December 22, 2015 – 4:20pm

The situation of Landon Webb, 25, who is still under guardianship, demonstrates the need to get rid of the act that strips him of his rights, argues Dalhousie University law professor Archie Kaiser.

The case of Landon Webb echoes an inglorious past.

The archaic Incompetent Persons Act provides plenary powers to guardians which are being used to confine in an institution a non-dangerous person who has committed no offence. Even worse this law is now being wielded to eliminate his freedom of expression, to remove his ability to tell the outside world about his experience and his aspirations.

Canada ought to be ashamed of the way it has treated persons with disabilities. The Supreme Court of Canada has accepted that they have been “systematically isolated, segregated from the mainstream of society, devalued, ridiculed and excluded from participation in ordinary social and political processes.”

Nova Scotia’s adult guardianship law has facilitated this marginalization through statutes such as the Incompetent Persons Act, legislation condemned by the Law Reform Commission twenty years ago because it remained essentially the same as when it was first adopted in England in the late 1700s.

Although the current justice minister has said she is sympathetic to his situation, that this law is still being used to strip persons with intellectual disabilities like Landon Webb of their constitutional, legal and human rights in late 2015 is incomprehensible and inexcusable.

When the Law Reform Commission recommended the act be repealed in 1995, their indictment was damning and comprehensive: the law used offensive language; it took an all-or-nothing approach, imposing no limits on guardianship orders; it emphasized property and said nothing to constrain the powers nor to stipulate the responsibilities of a guardian of the person; it had few provisions for monitoring guardians of the estate and none for guardians of the person; it showed a lack of respect for the autonomy of adults, permitting “undue interference in decisions about daily living and health care;” it egregiously conflicted with the Charter of Rights and Freedoms as it failed to give people the right to the least restrictive alternative and it was manifestly procedurally unfair.

Subsequent governments of all political stripes have failed to take up this law reform challenge, leaving Nova Scotia mired in segregative outlooks on persons with intellectual disabilities that are more consistent with the discredited era of the Halifax Poor House.

Other provinces have moved on from their colonial past. Saskatchewan’s Adult Guardianship and Co-decision-making Act permits co-decision-makers to share legal authority with the adult, recognizing that very few people are globally incapable of making decisions.

The act also insists that the co-decision-maker acquiescence to an adult’s reasonable decision and demands minimal interference in the adult’s life and decision-making process, while safeguarding his or her civil and human rights. Alberta’s Adult Guardianship and Trusteeship Act requires the autonomy of assisted adults to be preserved “by ensuring that the least restrictive and least intrusive form of assisted or substitute decision-making that is likely to be effective is provided.”

It permits a graduated range of assistance for the decisionally-impaired adult, from supported decision-making to co-decision-making to guardianship only when “less intrusive and less restrictive alternative measures than the appointment of a guardian have been considered.” Manitoba’s Vulnerable Persons Living with a Mental Disability Act recognizes that interventions must respect “the privacy and dignity of the person and should be the least restrictive and least intrusive form of assistance,” offering support services based on an individual plan in which the vulnerable person has an opportunity to participate. Substitute decision-making can be invoked only as a last resort and each arrangement requires a justification for any powers that are granted while limiting the decision-making authority of a guardian.

Canada’s 2010 ratification of the United Nations Convention on the Rights of Persons with Disabilities demonstrates that the world community has also catapulted beyond Nova Scotia. This treaty obligates Canada (and Nova Scotia) to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity,” and to advance their “full and effective participation and inclusion in society,” providing access to supports “they may require in exercising their legal capacity” and ensuring that they “enjoy the right to liberty and security of the person” on an equal basis with others.

The repeal of the Incompetent Persons Act by the legislature, or its striking down by the courts due to its blatant inconsistency with the Charter, and the substitution of modern respectful legislation cannot come too soon for Landon Webb and others who are caught in its tentacles. People with intellectual disabilities would benefit from a contemporary statute that actually protected the full range of their human rights, although even such improved legislation on its own will be inadequate until Nova Scotia also truly acts upon what the UN has accepted, “that the majority of persons with disabilities live in conditions of poverty” and there is a “critical need to address the negative impact of poverty on persons with disabilities.”

Nova Scotians with intellectual disabilities deserve better law than the Incompetent Persons Act and they ought to have an adequate standard of living now. The legislature or the courts must recognize the urgent and pressing need to take remedial action

Archie Kaiser, a professor at the Schulich school of law, is cross-appointed to the department of psychiatry at Dalhousie University in Halifax.

 

 

December 21st

Chronicle Herald- Letter to the Editor:

Thoughts about the Landon Webb case:

People First of Nova Scotia is appalled by the situation in which Landon Webb finds himself.

He has a right to be where he wants to be, the freedom to make his choice. To our knowledge he has not committed a crime.  How does our government have the right to lock him up, like a criminal but with no charges?  What process is there to have him released?

Certainly we who have disabilities have the same rights as anybody else in Canada. We are Canadian citizens are we not? We were allowed to vote and we did.  Can we support a government that would lock us up?

There is still a mentality here that thinks it’s okay to put innocent people in a lock up.

How scary is that.  Are we all at risk to be locked up?  I’ll be having Christmas with my family and my friends are free to celebrate with whoever they choose.  Where will Landon be?  Where are his rights?

Where are mine if a social worker or my parents decided that I should be put into an institution?  Would I be there for life with no chance of a trial, no chance of parole? Is there really no way to change this archaic act?  Since it was written in the days of residential schools and we’re finding out what happened there, should there not be an immediate resolution to locking up a person who has committed the crime of being slightly intellectually different from others?

In the spirit of Christmas is there no way to give a gift of freedom for this young man?  I would say to people who have power to make things change, “look in your heart and find a way to right this wrong and give the gift of choice to Landon”.

Donna Murphy,

President People First Nova Scotia

Yarmouth, NS

 

Law prof Archie Kaiser on how to help Landon Webb

MARY ELLEN MACINTYRE STAFF REPORTER
December 18, 2015 – 8:33pm
December 19, 2015 – 7:42am
Landon Webb speaks to The Chronicle Herald on Dec. 4. (ERIC WYNNE / Staff / File)

What could Justice Minister Diana Whalen do to help Landon Webb?

Archie Kaiser, a Dalhousie University law professor, has a few suggestions.

Webb can apply under Section 13 (1) of the Incompetent Persons Act, alleging his current guardians are “evidently unsuitable” and ask for their removal. The attorney general could, in Kaiser’s opinion, become a party to that proceeding by asking the court to invoke its “parens patriae” jurisdiction, to act as the parent of any individual in need of protection, whether or not the applicant challenges the constitutionality of the legislation.

Given what Kaiser calls the conspicuous constitutional flaws of the law, he said he hopes its infringement of the charter would be raised. Under the Constitutional Questions Act, Section 10 (7), “The attorney general for the province is entitled as of right to appear and be heard either in person or through counsel” in any proceeding where, under Section 10 (2) (a), “the constitutional validity or constitutional applicability of any law is brought into question.”

Webb could ask the court to remove his guardian because he has become competent, under Section 14 of the Incompetent Persons Act. The minister could direct her counsel to ask for party status to that proceeding as well, using the parens patriae authority of the court or to support a constitutional challenge.

Webb could bring an action under the Liberty of the Subject Act for an order in the nature of habeas corpus, alleging he has been “illegally restrained” under an unconstitutional statute. The Supreme Court would then “decide upon the legality of the imprisonment.” The attorney general would be required to be given notice, under Section 15 (1), and could support the application to have him released.

Assuming the minister receives status as a party under either the parens patriae doctrine, the Constitutional Questions Act or the Liberty of the Subject Act, she would be permitted to call evidence in support of the position of the province, which could be that the Incompetent Persons Act is indefensible from a constitutional perspective, and either the act should have modern charter values imposed on its interpretation or it should be struck down in its entirety, perhaps with guidance from the court.

The legislature could pass amendments to the Incompetent Persons Act on an urgent basis. This would not be a substitute for the eventual repeal of the act and the substitution of a modern statute. However, the legislature could, for example:

Affirm the dignity and autonomy and right to enjoy full participation and inclusion in society of persons with disabilities;

Provide persons designated as incompetent with more grounds for challenging their status and reverse the burden of proof of incompetence to place it on the guardian, in any case involving a judicial rehearing, review or appeal;

Provide a right to supports that persons may need in exercising their legal capacity;

Provide for thorough minimization criteria, noting especially that any appointment of a guardian must only be as a last resort, must be the least restrictive order possible and for the shortest duration;

Declare that the wishes of the adult must always be taken into account;

Restrict the powers of guardians;

Demand regular reporting to the court of how the powers of the guardian have been exercised to ensure they are used in a manner that recognizes the equality and liberty interests of the person and are consistent with the order of the court.

Even if no one challenged their status or the legislation immediately, a case could be made for the attorney general applying on her own, asking the court to invoke the parens patriae jurisdiction.

 

 

Supporters seek rights for Landon Webb

MARY ELLEN MACINTYRE STAFF REPORTER
December 18, 2015 – 8:40pm
December 19, 2015 – 7:38am
Landon Webb is in a locked unit, has no phone and is not allowed visitors unless approved by his guardians, says a supporter.

“He has no way of knowing how much support he has gathered over the past week or so,” said Rick Gautreau, one of the organizers of an event called Light For Landon, Let Landon Speak.

The plight of the 25-year-old man, deemed incompetent in 2010 and placed under the guardianship of his parents, Brenda and Darrell Webb of Merigomish, came to light earlier this month.

SEE ALSO: Law prof Archie Kaiser on how to help Landon Webb
PAST COVERAGE: The Landon Webb case

During a Dec. 4 interview at the Lower Sackville rehabilitation centre where he lives, Webb told The Chronicle Herald he believes he is capable of living an independent life and wants only to get a job, live with his girlfriend and bring up his three children.

 By later in the week, national media had picked up the story of a seemingly eloquent, capable man who wasn’t a criminal and yet had no rights or liberty.

Earlier this fall, his mother appealed to the media for assistance because the rehabilitation centre in Waterville where he was living determined he could no longer stay there. She said he had the intellect of a 10- or 12-year-old.

He was given an extension at the Kings Regional Rehabilitation Centre until a “suitable” place could be found for him.

Webb told The Chronicle Herald he knew what “suitable” meant, suspecting he would be placed in a facility with higher security. Fearing the worst, he left and made his way to Alberta.

A month later, with what he says was a promise from his parents that he could live at home with them, he returned to Nova Scotia.

“They picked me up in Truro and then told me I had to go to a facility, and so I left again,” he said.

He was picked up by police in Stellarton a few days later.

“They arrested me, put me in the jail for about an hour and a half, handcuffed me like I was a criminal.

“I never did anything wrong. I don’t even have a criminal record.”

According to his supporters, Webb has been unable to make contact with the outside world since a few days after he went public.

“We need to show him he still has so many people out there who care about him and want him to be free to live his life,” said Gautreau.

The Light For Landon, Let Landon Speak event is scheduled for Sunday at 7 p.m. and will involve supporters holding flashlights or cellphone lights outside the rehabilitation centre.

“We hope he’ll be able to see out his window — which is barred, by the way — and see that we are there for him,” Gautreau said.

The event will follow a 2 p.m. benefit in support of Webb and his family at Staggers Pub & Grub on Portland Street in Dartmouth.

Initially, the benefit was organized to hire a lawyer for Webb. However, he has a free lawyer from Dalhousie Legal Aid.

“He’ll need some (money) to get started in his life again, or maybe it can be used to get Christmas presents for his kids — whatever, we’ll do the right thing,” said Gautreau.

Webb was deemed to be unable to lead his own life under what many in the legal profession call the archaic Incompetent Persons Act.

Justice Minister Diana Whalen told CBC this week there is nothing she can do to assist Webb but agreed the act probably needs to be looked at.

Whalen was unavailable to discuss the issue Friday. A media adviser sent a statement that did not address what the justice minister can do to assist someone in Webb’s position.

“We cannot comment on the specifics of the case. It would also be inappropriate for the (attorney general) to comment given this matter that is before the court,” the statement read.

“The Department of Justice agrees this legislation seems outdated and is committed to working with our partners in Community Services and Health, and looking at what other jurisdictions have done across the country to determine how we can move forward here in Nova Scotia. We all want to live in a province where the rights of every Nova Scotian are respected.”

Dalhousie law professor Archie Kaiser couldn’t agree more about how the rights of every Nova Scotian should be respected. However, he has some problems with the lack of immediate action.

“It is a sad situation when the attorney general of the province expresses profound dissatisfaction with an ancient statute, which is totally inconsistent with modern societal and constitutional values, but then says that nothing can be done,” Kaiser said.

“I do not believe that. I’d like to believe the Province of Nova Scotia really does care about the rights of persons with disabilities. Assuming that is the case, the minister should pull out all the stops in order to ensure that justice is done. Although the minister has said that she was disappointed there was nothing she could do in this individual case, I believe that there are opportunities here for an appropriate intervention, and I think that she should urgently consult with her staff to help find a remedy for Landon Webb and others who are subject to this woefully inadequate and wrongheaded legislation.”

Thursday December 10, 2015

Landon Webb says he dreams of ‘just living a normal life’

Landon Webb is currently living at the Quest Regional Rehabilitation Centre, just outside of Halifax.

Landon Webb has set off a chain of events that may alter the way Nova Scotia addresses the challenges facing people with special needs and the people who love them.

On Thursday, he spoke to As It Happens from inside a Halifax-area care facility.

The 25-year-old Nova Scotian wants to challenge the province’sIncompetent Persons Act. His complaints have prompted Justice Minister Diana Whalen to review the legislation. Under the law, Webb has been deemed incompetent and placed under the guardianship of his parents.

As It Happens spoke to Webb’s mother, Brenda Webb on Wednesday. She said that she and her husband are simply trying to do what’s best for an adult child who would be at risk if left to his own devices. They went public with their concerns for Landon in October, when he left the facility where he was living to find work in Alberta. He only returned to Nova Scotia a few days ago.

As It Happens spoke with Webb, who is currently at Quest Regional Rehabilitation Centre, just outside of Halifax. Here is a part of their conversation.

Carol Off: Mr. Webb, how did you end up at [Quest Regional Rehabilitation Centre]?

Landon Webb: My parents. I had an idea of when I left Kings that I was going to be enrolled in such a facility, like this.

CO: Kings was the Kings Regional Rehabilitation Centre, that’s where you were before and you left there?

LW: Yes. I left there before I got discharged because of this reason, ’cause I didn’t want to be locked up. I was promised by my mother that I would be coming home. The main reason that I left is because I was very disappointed that I wasn’t taken home. I just wanted to be able to spend a few days with my son. It was very disappointing what they did that night because they had my son there. They told me that I wouldn’t be coming home with them. [My son] started bawling his eyes out. I’ll never, ever forget that. I still have an image in my mind and it’ll never leave me. Every time I think about or even talk about it I almost get tears to my eyes. It’s just unfair to me and it’s unfair to my son because he doesn’t know what’s going on. He’s like four and a half and he’ll remember that night. I know he will.

CO: We spoke with your mother and she said the reason why she wanted you back, the reason why she wants you to be kept where you are or in some facility, is that you can’t make choices for yourself. That if you do, you get into trouble. That it’s dangerous for you. What do you say to your mother?

LW: I don’t believe that’s true. I have made a lot of good choices on my own. For instance, up in Edmonton. I know the right people and wrong people to not associate with up there. Say for instance, at the Edmonton bus terminal. It was pretty bad there. Maybe a person would come up to you and say, “Hey, do want to go for a walk?,” go to Timmy’s or something like that. That’s a pretty bad idea to go for a walk with somebody you don’t even know or maybe they’re being all nice. A mind of a 10 to 12-year-old or somebody that’s very naive would just just go for a walk with them.

CO: So what is your dream? How do you see yourself? If you could now just set yourself up as you want to be, describe where that would be, how that would be, where you would live?

LW: I’d like to be in an apartment. Working at a [car] dealership. Just living a normal life. Working 8 a.m. to 5 p.m., Monday to Friday. Coming home, playing with my kids and sitting around watching television at night when they go to bed with my girlfriend. Then, go to bed and do it all over again.

CO: Is that possible? Do you think that you can make that happen?

LW: I’ve worked from 8 a.m. to 5 p.m. It was working out perfectly, that [car dealership] job for me. I loved it. I did well at it and the only reason why it stopped was it was sabotaged by my mother. The RCMP showed up plenty of times. There was a complaint against a man, and yeah…

CO: When I spoke with your mother, I got the impression that she really loves you and what she’s trying to do is what she believes to be in your best interest. She’s trying to protect you from people who might take advantage of you and hurt you and that she wants to help you.

LW: No one can take advantage of me. I am my own person. I have my own mind set. I know if somebody would be taking advantage of me. I can’t be controlled or manipulated. It just sounds… ahh… I don’t know…I’ll get back to you on that one.

CO: Do you believe that your mother loves you and she’s trying to help you? Do you trust her?

LW: It’s hard to say what love is. When I came back from out west and when I called her up on the phone when I was out there and they never heard from me in over a month, she never shed a tear on the phone. When I came back she never even cried and my father never even shook my hand. That’s something else.

CO: Do you agree with the medical assessments?

LW: I don’t agree with the assessments. But I agree with some of  the intellectual disability I have. I do have weaknesses and everybody has weaknesses.

CO: When we spoke to your mother she said that no one on the outside can judge. No one who hasn’t been with her or walked in her shoes can understand what she has done to try and help you. She resents that there’s so much publicity. That this is all out in the open. She doesn’t think anyone can really understand what she has gone through. Would you agree with that?

LW: No, I would not. I should be able to have my voice heard and everyone has the right to freedom of speech and the right to choose where they should live. There’s people out there living on their own and maybe people can take their meds or can’t do financial (sic) on their own but there’s people that get support in those areas to be able to live on their own. That’s how the act of this legislation needs to be changed because it’s just so outdated. It makes a person deemed incompetent globally and it’s not just by spectrums of their life – it’s all over.

CO: But you would need help. You do acknowledge you would need some support if you were to live on your own — is that fair?

LW: No, I don’t really acknowledge that. But we don’t really know until I get an assessment, a multi-modal assessment for sure, until I find out what my strengths are and my weaknesses are. I would really love to get that assessment. I’ve been trying for the last five years.

CO: Just one last question about your parents. Do you love them? Do you think deep down that they do want to help you even if it’s not the way you want to be helped?

LW: Deep down somewhere, maybe yes. They cause a lot of grief in my life. Really, I’m not really sure because taking away their son’s rights, all of them, and I’d like to quote you on what my mother said about how she sits down and talks to me about how we make decisions together. Well, my mother said to me on a number of occasions that I don’t have the right to make decisions. We make the decisions for you.

This interview was edited for length and clarity.

Wednesday December 09, 2015

Landon Webb case prompts Nova Scotia to review Incompetent Persons Act

Brenda Webb and her husband Darrell in Halifax on Wednesday, Oct. 28, 2015. At the time, her son Landon Webb, declared legally incompetent by the courts, hadn't been seen since Oct. 15, when he left a rehabilitation centre in Nova Scotia's Annapolis Valley.

http://www.cbc.ca/player/play/2680217123/

Incompetent Persons Act to be examined by Justice minister Diana Whalen

Diana Whalen says the law is outdated

CBC News Posted: Dec 09, 2015 9:29 AM AT Last Updated: Dec 09, 2015 9:29 AM AT

Justice Minister Diana Whalen says she and her staff have started work on reviewing the Incompetent Persons Act.

Challenging the Province’s Incompetent Persons Act

Justice Minister Diana Whalen says she and her staff are looking at modernizing Nova Scotia’s Incompetent Persons Act after a legal scholar said the act is outdated and drastically reduces an individual’s’ freedom.

“My commitment is we’re not going to sit on this,” said Whalen. “We’ll start our research and our contacts right away.”

Sheila Wildeman teaches law at Dalhousie University’s Schulich School of Law and is the associate director of the Health Law Institute.

She said the Incompetent Persons Act allows a parent or guardian to prove that a person has a “mental infirmity” making that person unable to manage their own affairs.

Once a person is declared incompetent, their rights to do everyday things like manage their own finances and choose where to live are removed.

Wildeman doesn’t believe that the Incompetent Persons Act could survive a legal challenge under the Charter of Rights and Freedoms.

After hearing Wildeman’s comments on CBC’s Information Morning, Whalen had her staff started reviewing the act.

“It is an act from 1989, it is outdated, there is no question. So I’ve committed that we’ll have a look at it and see what steps we can take,” said Whalen.

The act needs to be significantly reworked, according to the justice minister.

“We really have to modernize it and rethink how it was written and what we’re trying to achieve. We want to achieve independence, we want to recognize the rights of people, that’s really important.”

Changes to act will take time

Two of the main concerns with the act are how a person is deemed to be incompetent and how a person might appeal that decision.

Twenty-five-year-old Landon Webb is trying overturn his status as mentally incompetent. His parents claim he functions at the level of a 10-year-old boy. Webb wants to be free to choose his own path in life and plans to prove his competency to the courts.

Changes to the act could be a long time coming though. Whalen said her department has been busy making changes to family law.

“We brought in a number of acts this session. We need to get that done and then I’d say this is one we’d move to right away. We have staff that can begin the scan and begin the contacts with health and community services and with outside advocacy groups,” said Whalen.

“It does take time to bring in a new law and get it into the agenda to come to the house.”

Wednesday December 16, 2015

Nova Scotia Justice Minister wants to explore how to intervene in Landon Webb case

Nova Scotia’s Justice Minister says she wants to intervene in the case of Landon Webb, even before a review of the province’s Incompetent Persons Act. Diana Whalen says the review will take too long.

The Act and the court order under it gives Webb’s parents complete decision-making authority over the 25-year-old. When As It Happens host Carol Off spoke with Webb’s mother, she insisted that normal autonomy would leave her son at risk. On Tuesday, Webb’s lawyer said that his parents had removed his telephone and internet privileges.

 

Justice Minister Whalen spoke with As It Happens about the legislation and how she plans to intervene. Here is a part of their conversation.

Carol Off: Ms. Whalen, what is it about Landon Webb’s experience, his case, that made you decide to review the Incompetent Persons Act?

Diana Whalen: Well as you know Carol, I can’t speak specifically to his case but I can certainly say because it has come to light, it is a catalyst for us to have a look at this act and to reconsider what is needed – really to modernize our approach to this.

 

Landon Webb to fight Incompetent Persons Act in Nova Scotia

Legal scholar says law affecting 25-year-old is ‘ripe for attack’ under Charter of Rights and Freedoms

 

Landon Webb

A man declared mentally incompetent under a Nova Scotia law that a legal expert says is “ripe for attack under the charter” of rights has left Alberta to try to have his status overturned and fight to change the legislation.

“I want to fight my case. I want to win,” said Landon Webb, 25, who voluntarily left the Kings Regional Rehabilitation Centre in Waterville, N.S., in October to find work in Western Canada.

“I don’t want to just do it for myself, but for my son, my girlfriend, and for all the other people who have their rights stripped away and violated.”

Webb found himself the subject of several police alerts this year that said he had gone missing. His parents claim he functions at the level of a 10-year-old boy, and were upset when he discharged himself from the rehabilitation centre, where treatment is voluntary.

Webb told CBC News that he should be free to set his own course, and opposes the Incompetent Persons Act.

“I feel that no one should have the right over someone else. I’m a person, a human being, not some piece of property. I should have my voice heard. I should be able to choose where I live, not have someone else choose it for me,” he said last week as he prepared to leave Alberta.

He called his treatment discriminatory and upsetting.

“To see that I was all over the news with the intellectual level of a 10 to 12-year-old, and to see all the comments people make about me? It’s very upsetting, to say the least.”

He said he spoke to police in Edmonton to show he was safe and not in danger. But he has since returned to Nova Scotia, and said he intends to overturn the mentally incompetent declaration.

“I’m not saying they were wrong at the time deeming me incompetent, but now that I’ve grown up and grown older, I expect I can prove my competency to the courts,” he said, adding that the testing required to do that costs thousands of dollars.

Law contravenes charter, scholar says

Sheila Wildeman teaches law at Dalhousie University’s Schulich School of Law and is the associate director of the Health Law Institute.

On Tuesday, she said Nova Scotia’s incompetency act is unique in Canada. She also said the global standard makes Nova Scotia a “laggard” in Canada, she said.

“The act is at odds with modern principles of legal capacity. All of this goes to the act’s arbitrariness, its overbreadth, its contravention of Section 7 of the charter that protects liberty.

“What I’d like to hear is the [Nova Scotia] minister of justice, Diana Whalen, on how the government justifies this type of legislation remaining on the books in 2015.”

Nova Scotia is one of the last jurisdictions in Canada to offer a “global” declaration of incompetence, she said, and the law wouldn’t likely survive a legal challenge.

Section 7 of the Charter of Rights and Freedoms guarantees “everyone has the right to life, liberty and the security of the person.”

Under the act, parents or guardians must get affidavits from two physicians saying that person can be declared incompetent.

They must prove “mental infirmity” that makes that person unable to manage his or her own affairs.

She said the statement of global incapacity removes individuals’ right to handle their own finances, and choose where to live, what to wear and even manage their own grooming.

‘Ripe’ for a legal challenge

Wildeman is “perplexed” at how you could prove such a comprehensive decision in the first place.

“That’s really at the heart of the problems with the act that I think in part Landon Webb is getting at,” she said. “The standard itself is ripe for attack under the charter.”

But Wildeman said the act “empties your decisions of legal authority,” and if the person receives close oversight from family members, the family or guardian could deny him or her access to health records or get a lawyer.

That makes it hard to build a case against the declaration. Such people can apply to end the guardianship order, but Wildeman is unaware if that would ever happen.

 

 

 

 

Landon Webb case: N.S. vows to probe competency act

MARY ELLEN MACINTYRE STAFF REPORTER
December 8, 2015 – 8:49pm
December 15, 2015 – 7:17am

Justice Minister Diana Whalen committed Tuesday to examining Nova Scotia’s Incompetent Persons Act, and that could mean good things for the rights of disabled people in this province, says a Dalhousie University law professor.

Archie Kaiser, whose areas of expertise include criminal and mental disability law, says Whalen has “a real opportunity to become a leader here.”

Whalen told reporters she just recently heard the story of Landon Webb and intended to look into Kaiser’s suggestion that the act used to give Webb’s parents guardianship over him is antiquated and badly in need of replacement.

Webb, 25, was the subject of a number of missing-person reports after he left the Kings Regional Rehabilitation Centre in Waterville in October.

Under the Incompetent Persons Act, he is unable to live independently without the permission of his parents. He is now living in a locked facility in Lower Sackville.

Webb has told The Chronicle Herald he is capable of looking after himself and wants to live and work in the Pictou County community where he grew up.

Whalen said she would ask the ministers of health and community services to take part in deliberations concerning the act.

“We’re committing to having a closer look and examining and seeing what’s needed,” she said.

Kaiser said Tuesday she doesn’t have to look far.

“In this case, the modernization and improvement that she has said she is interested in will require the repeal of the current Incompetent Persons Act, as recommended 20 years ago by the Nova Scotia Law Reform Commission,” he said.

“Fortunately, their recommendations, legislation from other provinces and the (UN) Convention on the Rights of Persons with Disabilities provide a clear sense of the direction that any new law will need to take.”

Earlier in the day, Health Minister Leo Glavine said legislation does become dated. He suggested the time has come for an examination of the act.

“Sometimes it takes one case such as the one we see developing now in the province,” said Glavine.

Moreover, he said, since each person develops at their own pace, no one can make a final determination on anyone until at least the age of 25.

Meanwhile, People First Nova Scotia, a self-advocacy group for people labelled with an intellectual disability, has come out in support of Webb.

During a telephone interview Tuesday, the vice-president of the group said he sees himself in Webb.

“This is what I believe: Landon’s story sounds like my own and now I live out on my own in my own apartment and I have friends and family and lots of support,” said Dave Kent.

“It means the world to me.”

He said it is important for people to understand there are people in this world who might need supports to live independently, but they don’t need to be locked up.

Charlie Lemon, one of the founding members of People First Nova Scotia, took part in the interview with Kent.

“I was locked up in an institution and didn’t have any rights and then I went into a group home and the staff there made the decisions,” Lemon said.

“Then I came to Dartmouth and applied for a job at a pizza shop and I’ve been working over 20 years at the pizza shop.”

He now lives in an apartment above the pizza store and says he wants for nothing.

“There are many success stories and many who are living successfully across the province and others who are in institutions, but they all have different abilities,” said Cindy Carruthers, executive director of the group.

“We have members of People First Nova Scotia who drive their own cars, who are married with children. Everyone must be given a chance to live their lives.”

 

Landon Webb speaks to The Chronicle Herald on Dec. 4. (ERIC WYNNE / Staff / File)

Act under which Landon Webb was declared incompetent ‘antiquated': law professor

MARY ELLEN MACINTYRE STAFF REPORTER
December 7, 2015 – 9:50pm
December 15, 2015 – 7:14am

The act under which a Nova Scotia Supreme Court judge declared Landon Webb incompetent in 2010 and awarded guardianship to his parents is “outrageously antiquated,” says a Halifax law professor. “There are parts of the Incompetent Persons Act that date back to the late 1700s, and a report of the Law Reform Commission back in 1995 recommended massive changes, but the act was never changed,” said Archie Kaiser, a Dalhousie university instructor whose areas of expertise include criminal law and mental disability law. “I don’t know why.” Court documents show Webb’s parents applied to Supreme Court in 2010 for guardianship of the then-20-year-old, alleging he was in jeopardy because he was associating with criminals. Dr. Herbert Orlik wrote in an assessment of the young man that he had a “significant intellectual deficit, a language disordere he said he worked with a road construction company. His parents made a public appeal for his return and posted signs in many parts of the province urging residents to notify police if he was seen. When his parents said he could return home to his own community, Webb opted to come back to Nova Scotia. However, he said once he arrived in Truro, his parents told him he would be going to another rehabilitation centre. Webb ran away again, but police picked him up in Stellarton and took him to the Halifax facility. Although Kaiser was reluctant to comment on Webb’s case, he spoke in generalities, referring to the United Nations Convention on the Rights of Persons with Disabilities in which it states a government should ensure people with disabilities enjoy the right to liberty and security of person on an equal basis with others. The convention declaration indicates that governments should ensure people with disabilities “are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty.” Kaiser said Nova Scotia has failed in regards to the rights of disabled persons, calling this province a legislative backwater. “The failure of Nova Scotia was not to accept our law reform recommendations,” he said. “Nova Scotia failed to introduce new legislation, and it is absolutely shameful. I’m at a loss as to how our province could fail to respond. “We’re talking about fundamental human rights, not frivolities.” Sheila Wildeman, an associate law professor also at Dalhousie in Halifax, said there were some small terminology changes in the act. “They took out words like ‘lunatic’ and some other antiquated language, but that was it,” she said. “There is a very vague standard for incapacity that governs this act.” One of the points that bothers Wildeman so much is that she believes the act is unconstitutional under Sec. 7 of the Canadian Charter of Rights and Freedoms. “In the opinion of anyone I’ve spoken to about this act, it is unconstitutional.” The unlimited powers conferred on someone declared a guardian are confounding, she said. “Incapacity is all or nothing, it seems … and that’s not adequate.” Wildeman said the act should simply be struck down and replaced with one that better reflects the needs of persons with disabilities. “It’s low-hanging fruit and an obvious infringement of rights.” As for anyone hoping to get out from under a guardianship, she said it would be important to have an independent assessment and legal counsel. Meanwhile, Webb said Monday he has a lot more hope for his future now. “They told me here speaking to the media is against my mother’s wishes, but others told me I was pretty smart to go to the media,” he said. “On the website, there were people who used to work with me or people who were in the other places I was staying saying, ‘Good for you. I’m very proud of you,’ and cheering me on.” The Facebook site is called Help Landon Webb Be Free. Asked if he felt bitter or angry about being in an institution, Webb said no. “I taught myself how to cope with things because being angry and bitter or down about things, they aren’t going to help my situation.”er, anxiety, mood instability and epilepsy.” The psychiatrist wrote that Webb’s parents, Brenda and Darrell Webb of Merigomish, were concerned for their son’s well-being because he was “drinking and smoking weed.” They also feared that when he was not in their care, he didn’t take his medication appropriately and was in jeopardy of sexual and physical abuse. The psychiatrist described Webb as wary, unco-operative and suspicious. During an interview Friday at a locked Lower Sackville facility, Webb said he only wanted to be free to live his life and raise his family. He and his partner have three children. His case came into the spotlight earlier this fall when his parents went to the media indicating that the Kings Regional Rehabilitation Centre in Waterville refused to keep Webb any longer. He had lived in the facility for two years and centre officials said they were no longer able to keep him. Webb told The Chronicle Herald in an interview Friday that when he realized his parents planned to put him in a centre where he wouldn’t be able to leave of his own free will every day, he had to leave for good. He travelled to Edmonton, wh

 

Landon Webb, 25, had been missing from the Kings Regional Rehabilitation Centre in Waterville since Oct. 15. On Wednesday, Nova Scotia RCMP said Webb has been in contact with police and his family.

Landon Webb, the 25-year-old Waterville man missing for over a month, has been found in Edmonton.

Webb was a resident at the Kings Regional Rehabilitation Centre in Waterville for the last two years.

He left the centre Oct. 15 at about 4 p.m. and had not been seen since. Webb was due to be discharged when he walked away from the facility.

“He has been in contact with police, and he has been in contact with his family,” Const. Mark Skinner, spokesman for the Nova Scotia RCMP, said in an interview Wednesday.

Last week, Webb’s parents, Brenda and Darrell Webb, who live near Merigomish, drove around Nova Scotia to distribute posters about his disappearance.

In an interview Wednesday, Brenda Webb said her son first contacted family by telephone Nov. 18. He spoke with them again Sunday.

“We were excited, but we tried to stay calm as well because we didn’t know exactly what was going on with him,” she said.

“We didn’t want to upset him.”

His family was later able to verify his location.

“We know he’s OK at this point, in general, from just talking to him on the phone,” Brenda Webb said.

His parents maintain he has the intellectual capacity of a 10- to 12-year-old. He also has a variety of medical conditions, including epilepsy, language and anxiety disorders, asthma and heart disease, and requires medication.

Plans are underway to bring Webb back to Nova Scotia sometime over the next several days, his mother said.

“The transportation end of things has been very difficult and complicated for multiple reasons, and family and friends are assisting us with that.

“He was in a secure location; we were able to secure that. He’s left that area now, and he’s proceeding forward to home. As he gets (near) Montreal, we’ll be able to secure a more secure transportation where he’ll be safer, feel more secure and less stressed.”

When she spoke to her son on the telephone, he sounded stressed, upset and anxious, she said.

“So getting him home will be paramount from here. I think he’ll feel much better once he gets home; he’s anxious to come home.”

At this point, she has no idea how Webb got to Edmonton or whether he’s received any medical care.

Their son’s disappearance is “nothing like we’d ever experienced,” his mother said.

“We’ve had a lot of stress and difficulties throughout our years, but a son like Landon missing, it was unlike any experience we’d ever dealt with.

“I’m just looking forward to seeing him.”http://www.http://thechronicleherald.ca/novascotia/1326349-act-under-which-landon-webb-was-declared-incompetent-%E2%80%98antiquated-law-professor