Privilege Can Be Waived - McGuinty Government IS Fighting Children With Autism And Their Parents

The Promise Breaker


There are few privileges more sacrosanct in our common law heritage than that of solicitor-client privilege. It is a central element of our system of justice. It permits clients to share information vital to their case with their lawyers in confidence that the information will not be disclosed to opposing parties. Without such confidence it would be difficult for our legal system to function properly. The McGuinty government is advancing a powerful argument in its dispute with NDP MLA Shelley Martel and parents of autistic children seeking to know how much money the McGuinty government spent fighting the autistic children and their parents that Ontario Premier Dalton McGuinty had once, before becoming Premier, promised to help. But, privilege must be examined in the context of the case at issue. This case is about a government leader who turned his back upon, and fought with public monies, those he had once promised to help.

The lawyer for the Crown, the McGuinty government, is well within her rights, or more properly, her client's rights, to advance solicitor-client privilege as an argument in the Crown's case. She is wrong however, simply wrong, when she says that "This is not about fighting children with autism and their parents". That is exactly what this entire proceeding is about.

This case is about Dalton McGuinty, the candidate for Premier of Ontario who campaigned on a promise to help autistic children who, once wearing the Premier's Crown, broke his promise and went further. The "Honourable" Premier then turned his legal guns on the parents and autistic children he had promised to help. The Supreme Court of Canada in the Auton case effectively removed the Charter of Rights as a means of protecting the equality interests of autistic children. In Auton the SCC made it clear that governments, not courts, will decide whether autistic children will receive treatment for their condition. As weak as the Auton decision was in its characterization and understanding of autism and Applied Behavior Analysis, the decision was crystal clear on its central point - government decides how public monies will be spent.

Mr. McGuinty, once Premier, failed to keep his word. Instead of spending public funds on treating autistic children as he had promised, he and his government decided to spend public monies fighting autistic children and their parents in court to make sure they would NOT get the public funds for treatment he had once promised them. The fact is privilege, if it applies to disclosure of legal fees, which is not entirely clear, can be waived. The McGuinty government could waive the solicitor client privilege issue and disclose to the public and to the parents he had once promised to help the amount of public monies, in part at least the parents own monies, that he spent fighting them. As the SCC said in Auton governments decide how public monies will be spent. It is government which must also then be responsible to at least account for how they are spent.

Waiving privilege, being open with the public and with the parents of autistic children, is an option. Waiving privilege might disclose legal strategies. The strategies however would not seem all that important now that the Charter is no longer available to effectively help autistic children and other disadvantaged groups. The real issue is that waiver of privilege would almost certainly result in the disclosure of information embarrassing to Mr. McGuinty, the promise breaking Premier of Ontario.

The argument before the court IS about solicitor client privilege as the government lawyer argued. It is ALSO about political embarrassment. It is ALSO very much about fighting autistic children, and their parents, the very people Ontario Premier McGuinty had promised to help.



Families of autistic kids seek provincially funded treatment

NDP health critic asks: How much did Ontario `squander' on litigation?
Jun 19, 2007 04:30 AM

Tracey Tyler

LEGAL AFFAIRS REPORTER

Nancy Morrison re-mortgaged her home four times to pay for therapy for her 8-year-old autistic son.

At the same time, the Ontario government was waging a court battle against families seeking provincially-funded treatment for their autistic children.

"Our family has gone broke while the government has gone on fighting," she said.

That experience prompted Morrison to come from Bradford to the Divisional Court in Toronto yesterday to support NDP health critic Shelley Martel, who is trying to find out how much the Ontario government spent on legal fees contesting two lawsuits known as the Wynberg and Deskin cases.

Instead of "squandering" money on the litigation which ended earlier this year, the province should have funded therapy for autistic children, Martel contends.

She won the first round in April, when Ontario's Information and Privacy Commissioner ordered the attorney-general to disclose the total amounts spent on legal fees and disbursements in the cases.

But lawyers for the province were before the Divisional Court yesterday appealing that decision. "This is not about fighting children with autism and their parents," Crown counsel Kim Twohig argued.

The real issue is preserving the sanctity of solicitor-client privilege, which protects communications between a lawyer and client, including legal bills, she told Justices Dennis Lane, Sidney Lederman and Katherine Swinton.

Legal fees can reveal a lot, including trial strategies, the Crown contends. In the Wynberg and Deskin cases, for example, the attorney-general apportioned the cost of its legal services to various ministries – including education and long-term care – by assessing which ministries were at greatest risk of being held responsible for breaching the families' Charter rights, the court was told.

Crown counsel Sarah Wright argued that an astute observer or knowledgeable lawyer could use that information to "know where to catch the Crown flat-footed."

But Martel's lawyer, Frank Addario, said his client has been "extremely clear" that "she wants the totals" from the government's legal bills – "not the dates, time and information about who did what."

In the Wynberg and Deskin cases, about 30 families claimed the Ontario government was in breach of the Charter by failing to provide treatment programs for autistic children over age 6.

After the families won at trial in 2005, the government began funding therapy for older children, which continues even though the Ontario Court of Appeal overturned the trial judge's finding last year.

But treatment programs are not available in schools – a key issue in several ongoing cases, including two proposed class action lawsuits and 100 complaints now before the Ontario Human Rights Tribunal.

The court reserved its decision.

http://www.thestar.com/article/226868

To Deskin Wynberg Autism Case Families - Thank You

[Above top Supreme Court of Canada building, bottom - Canadian Parliament building]


Yesterday the Supreme Court of Canada, in a decision which probably did not surprise too many people, dismissed without reasons the application for leave to appeal the decision of the Ontario Court of Appeal in the Deskin-Wynberg case. The Court of Appeal had overturned a trial court decision which ruled that the Ontario Government was in contravention of the Charter of Rights by its refusal to fund Intensive Behavioral Intervention treatment for the families' autistic children. The Supreme court of Canada has shown increasing deference to government decision making during the tenure of the Rt. Hon. Chief Justice Beverley McLachlin, P.C., as Chief Justice of the Court. The Newfoundland pay equity case was the real indicator of the ascendancy of deference to government as the principal concern in the court's equality rights decisions. In that case Newfoundland (Treasury Board) v. N.A.P.E., 2004 SCC 66, [2004] 3 S.C.R. 381the Supreme Court found that postponement of introduction of pay equity schedules constituted serious discrimination but was justified by the challenges facing government decision makers to maintain government credit ratings and assign scarce financial resources.

The Auton case, Auton (Guardian ad litem of) v. British Columbia (Attorney General), 2004 SCC 78, [2004] 3 S.C.R. 657in which the Supreme Court of Canada reversed the unanimous decision of the British Columbia Court of Appeal, and a trial court decision ruling that exclusion of autism treatment from provincial medical care funding constituted discrimination contrary to the Charter left little room for doubt that deference to government now trumps the rights interests involved in Charter of Rights cases. In that case the Court concluded that the Canada Health Act itself provided limited guarantees of health coverage to Canadians and failure to provide coverage for treatment of some conditions could not therefor constitute discrimination.

In Canada it is clear that the courts are becoming an increasingly ineffective remedy for protection and advancement of the rights of children with autism. Any disability group which seeks to enforce what they consider to be their equality rights will have to think long and hard before commencing litigation to protect those rights under the Canadian Charter of Rights and Freedoms.

The litigation in the Deskin-Wynberg case helped keep autism issues on the forefront of political consciousness across Canada. The families' tremendous sacrifices, and that of their legal counsel, were undoubtedly very substantial. What is crystal clear, after the decisions in Auton and Deskin-Wynberg is that families seeking public policy assistance for their autistic children will have to take their concerns to the political arena.

The realities of politics often come down to numbers. Although autism is increasingly recognized as widespread with 1 in 150 persons now estimated to have some type of autism spectrum disorder those numbers will have to be translated into some degree of political influence. 1 in 150 does not sound like an overly strong hand to play but it is actually somewhat larger than that. Most people on the autism spectrum will have parents, siblings, relatives, family friends, personal friends who might vote based on the interests of the autistic loved one in their life. That expands the potential "autism vote" substantially and might be used to some effect in close political and federal ridings to try and pressure politicians to do what their consciences - and the courts - have not required them to do - treat, educate and provide decent residential care for autistic persons in need.

The future will tell whether autism numbers can be translated into political influence and gains for autistic persons and their families. For the present I would like to again personally thank the families, and the legal counsel, in the Deskin-Wynberg and Auton cases for the tremendous contributions they have made to the cause of autism in Canada.