Capacity Adjudication Proceedings

People who have disabilities that affect their speech, language, communication and /or cognition may require communication supports and accommodations to communicate about issues relating to their legal capacity, and to participate equally in adjudicative proceedings.

In 2010, Canada ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD). Recognition that people with disabilities enjoy legal capacity on an equal basis is at the core of Article 12 of the CRPD.  Article 12 clarifies that this requires that people have access to the supports they may need to communicate and/or make decisions.

CDAC makes the following recommendations to demonstrate ways that adjudicative bodies can accommodate people who have disabilities that affect their speech, language, communication and/or cognition.  CDAC recognizes that each adjudicative body must act in accordance with governing laws, rules and policies, and that people with disabilities have a right to equality in Canadian law, and this applies in decision-making contexts.

Recommendations: 

The following points, in conjunction with applicable laws, rules and policies, should guide accommodation policies and practices for people who have speech, language and communication disabilities:

  • An understanding of the key concepts in providing communication supports that people may need to reveal and exercise capacity to communicate decisions that affect them.
  • Acknowledging that a disability that affects communication does not necessarily indicate a capacity issue.
  • Recognizing that people may require communication accommodations and supports in one or more areas of in-person interactions; group situations; telephone; internet and digital communications; reading, understanding and completion of forms and signatures.
  • Identifying and providing communication accommodation and support needs at the earliest stages of a proceeding for an individual who has a speech, language, communication and /or cognitive disability.
  • Providing practices, tools and assistance that a person may require throughout the proceeding, including during a hearing, in the areas of:
    • Comprehending spoken information
    • Reading and understanding written information
    • Signing and completing documents
    • Expressing concerns, questions, preferences and decisions
    • Making decisions
  • If required, ensuring that the individual has access at all times to a person that they authorize to assist them with communication and/or with decision making.
  • If required, ensuring that an Individual has access to communication tools that they use or may need, such as picture, symbol, letter boards, pen and paper, and communication devices at all times.
  • Engaging an impartial, qualified, regulated Speech-Language Pathologist when required to:
    • Assist with identifying and providing an individual’s communication support needs for effective two-way communication
    • Determine and confirm an individual’s understanding of critical information
    • Ensure authenticity and accuracy of an individual’s expressive communication
    • Provide communication assistance if there is evidence of a conflict of interest, undue persuasion or coercion from support person(s); and
    • Provide support in high risk situations such as medical assistance in dying and criminal justice settings.

Next Steps