CANADA

The freedom to choose

MARY JANIGAN December 6 1982
CANADA

The freedom to choose

MARY JANIGAN December 6 1982

The freedom to choose

ONTARIO

It was a case that touched hearts and opened minds. On one side of a spartan courtroom was the father, Ronald Clark, an austere former Ottawa dairy owner who asked the Lanark county court to declare that his son was mentally incompetent. On the other side sat his 20-year-old son, Justin, who was propped in a wheelchair because of his cerebral palsy but gripped by a passionate determination to run his own life. The wrenching arguments flowed back and forth for six painful days. Then, late last week Judge John Matheson lauded Justin’s spirit and declared him mentally competent, although he has been mildly retarded from birth. As spectators cheered and Justin screamed with joy, experts predicted that the case will become a landmark decision in the struggle for rights for the handicapped. Said Matheson, his eyes brimming with tears: “A courageous man such as Justin Clark is entitled to take a risk.”

The case—which is without precedent in Ontario—began in the summer of 1981 when Justin wanted to leave the massive 1,075-bed Rideau Regional Centre for the retarded in Smiths Falls, Ont., his home since he was 2, to take a trip with former teacher Normand Pellerin. Although his parents had not visited him for most of his teenage years, they said no to the trip request, and officials bowed to their wishes even though a doctor had certified that Justin was capable of giving his own consent for outings. That was the start of a bitter 18-month clash. In court the parents’ lawyer said that Ronald Clark was frightened that his son would discharge himself from the safety of the institu-

tion. The parents did not rule out a group home—

Justin’s desire—but they wanted to choose the place and the timing of the move. When Justin took the stand and communicated through Blissymbolics, a board of sticklike symbols, he insisted, “I like to go out— that’s what I want to do.”

Confronted by those opposing visions of Justin’s needs, Matheson complained about Ontario’s antiquated Mental Incompetency Act and pleaded with the parties to reach an out-ofcourt settlement. Under the 1937 statute, the judge can only declare competency or incompetency with no provision for any intermediary judgments such as limited guardianship. To add to the legal conundrum, the sole definition of a mental incompetent is someone who “requires care, supervision and control for his protection and the protection of his property.” Experts agreed that Justin needed care and supervision but they differed over the issue of control.

In the end, the judge’s compassionate 13-page ruling portrayed Justin as a mildly retarded man locked in a severely disabled body. Matheson, himself crippled with injuries suffered at Ortona, Italy, during the Second World War, reviewed Justin’s laudatory progress reports over the years, marvelled at his Blissymbolics breakthrough at the age of 13, and dismissed the opinions of some of the parents’ expert witnesses. “With incredible effort Justin Clark has managed to communicate his passion for freedom as well as his love of family during the course of this trial,” concluded Matheson. “We have recognized a gentle, trusting, believing spirit and very much a thinking human being who has his unique part to play in our compassionate, interdependent society.”

The ruling means changes for Justin Clark but it will have ramifications for other Justins as well. Surrounded by his friends, the youth declared that he will move next month to Pellerin’s Ottawa group home, which is modelled on Jean Vanier’s progressive L’Arche in France. The senior Clark, rigid with self-control, declared that he was “apprehensive” about the ruling but said, “I can live with it.”

Spokesmen for the Ontario attorney general’s department predicted that the Mental Incompetency Act will soon be amended, and experts speculated that Justin’s fight for freedom may encourage other patients in similar facilities to fight for control of their fate. “A few

weeks ago he wouldn’t have even been able to find a lawyer to take this case,” marvels Harry Beatty, legal counsel for the Ontario Association for the Mentally Retarded. “It’s one example of the legal system reacting in a much more sensitive way.... They recognized the competence and ability in Justin Clark—he was

heard."

MARY JANIGAN

in Ottawa.