New Report on SRLs with Cognitive Disabilities;
Plus: "Enact the Gayton Principle"

Struggling for Accommodation
Barriers to Accessibility faced by Cognitively Disabled SRLs

Our latest research report examines the experiences of cognitively disabled self-represented litigants (SRLs) who have requested accommodations for their cognitive disabilities.

Cognitively disabled SRLs have increasingly reached out to the NSRLP detailing their frustrations with the accessibility of legal proceedings and the barriers they face in requesting accommodations for their disabilities. In response, we have sought to clarify the challenges faced by these individuals in order to make specific recommendations to Canadian Courts. A secondary goal of the study was to begin a preliminary investigation into the effects of the COVID-19 pandemic on cognitively disabled SRLs’ ability to secure accommodations.

The 10 participants were all Canadian adults with cognitive disabilities. We used data collected via semi-structured interviews and qualitative content analysis to determine the nature and extent of the challenges faced by cognitively disabled SRLs while requesting accommodations, and to determine whether the onset of the COVID-19 pandemic has impacted these experiences.

We found that participants were generally unaware of available resources and the appropriate processes they should follow to request accommodation due to inaccessible or unavailable informational materials. Participants overwhelmingly reported that the Court had made no effort to assist them, and many described how Court employees and judges treated them with hostility and dismissiveness.

Find the Full Report Here

Blog: Enact the Gayton Principle

Written by Judy Gayton, former self-represented litigant. Judy is just one of many individuals who was denied access to justice – a fair trial – because the Legal Aid assessment of her need did not take into account her brain injuries, which made representing herself extraordinarily difficult, and under the circumstances, impossible. The equivalent to a Jordan’s Principle for this historically marginalized and ignored group would be called “the Gayton Principle.”

People with disabilities, both physical and cognitive, are currently discriminated against in the Legal Aid system because they are not offered substantive – or actual – equality.

This is because the nature of their disabilities, and their impact on their ability to represent themselves in the absence of publicly funded counsel, is not taken into account in assessing their eligibility for Legal Aid. Instead, they are subject to the same eligibility criteria as those without disabilities.

This is a de facto breach of Jordan’s Principle. In 2007 the House of Commons passed a private members Motion establishing Jordan’s Principle, recognizing that Indigenous children have suffered historical disadvantage and must be able to access all public services when they need them. A 2016 Canadian Human Rights Tribunal decision – the first of a series finding the government in breach of Jordan’s Principle – clarified that this principle applies to Indigenous children living on or off reserve. It says that in order to achieve “true equality in outcomes” (and not just “formal equality”) the individual circumstances of each child and their particular needs must be taken into account. This is known as “substantive equality.”

Substantive equality is a human rights concept that weighs factors such as existing discrimination, marginalization, and unequal distribution of resources when considering policies and evaluating outcomes.

This means that for these children, it is recognized that additional services may be required to achieve substantive equality, and therefore these services must be funded. The Government of Canada describes it as, “…giving extra help when it is needed so all people have an equal chance to thrive.”

People with disabilities applying for Legal Aid should be afforded the same protection and recognition, since they are also a group that requires more than formal equality (for example financial eligibility) for Legal Aid. Recognition of the impact of cognitive disability on ability to self-represent is critical to achieving substantive equality in access to justice for this group, who have been historically disadvantaged...

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