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A BRIEF HISTORY OF DISABILITY RIGHTS

IN CANADA*

October 21, 2013

*This presentation was delivered at ARCH’s 2013 AGM. The presentation provides an overview of some key events in the history of the disability rights movement in Canada. It is not an exhaustive history and does not discuss all the important political and legal events that have occurred.

History of Disability Rights in Canada: 1970s

• Pre-1970s: many Canadians saw persons with disabilities as not able to contribute to society, dependent on charity, and not worthy of same rights and responsibilities as other citizens.

• 1970s: people with disabilities began to organize. They fought for the same basic human rights that other marginalized groups were demanding: that their rightful role in Canadian society was as equal and active participants.

1970s & 80s: Important Political Developments• 1976: formation of the Coalition of Provincial Organizations of

the Handicapped (COPOH) – now Council of Canadians with Disabilities

• 1981: United Nations International Year of Disabled Persons– promoted full and equal participation by people with disabilities– objective was to increase public awareness, understanding and

acceptance of people with disabilities

• 1981: Obstacles Report published – Federal Special Committee on the Disabled and the Handicapped – report was a comprehensive review of federal legislation regarding

people with disabilities– 130 recommendations to work towards full integration of persons with

disabilities in society

1970s & 80s: Important Legal Developments

• 1976-77: Canadian Human Rights Act

– Gave persons with disabilities right to be free from discrimination when employed by or receive services from the federal government, First Nations governments or private companies that are federally regulated (banks, trucking companies, broadcasters, telecomm)

• 1982: Canadian Charter of Rights and Freedoms

– Part of Canada’s Constitution– Right to be treated equally under

the law

Canadian Charter of Rights and Freedoms

• Original drafts of Charter did not include disability as a protected ground under section 15

• Government feared that inclusion of disability would mean changes to everything from buildings to phone books to make them accessible, and the costs would bankrupt Canada.

• Many Canadians organized and successfully lobbied for the inclusion of rights for persons with disabilities

Important Disability Rights Cases: Human Rights

• 1985: Supreme Court decisions in Bhinder v. Canadian National Railway Company, [1985] 2 S.C.R. 561 and O’Malley [Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536]

• Court ruled unanimously that human rights law includes both direct and adverse effect or adverse impact discrimination

• Adverse effect discrimination = policies or practices that appear neutral but in practice have a disproportionately negative impact on persons with disabilities

• Very important for disability rights claims: many cases are argued as adverse impact cases

Important Disability Rights Cases: Human Rights

• 1999: Supreme Court decisions in Meiorin [British Columbia (Public Service Employee Relations Commission) v. BCGSEU] and Grismer [British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights)]

• Jurisprudence had developed that allowed for different tests of BFOR depending on whether the requirement created direct or adverse impact discrimination

• Supreme Court found that this distinction was artificial

• Accommodation does not change the fact that the standard is discriminatory. Standards must be as inclusive as possible.

• Respondents now have a positive obligation to design their policies and practices so that inclusion and equality are built in.

Important Disability Rights Cases: Charter/ Equality

• 1997: Supreme Court decision in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241

• Supreme Court decided that segregated setting did not violate Emily’s rights: setting did not burden or disadvantage Emily

• Court stated that purpose of 15(1) is to prevent discrimination caused by prejudices and stereotypes that exist in society

• Court recognized that we must address the disadvantage caused by a society which is based solely on “mainstream attributes to which disabled persons will never be able to gain access”

• Only when integrated setting cannot be adapted to meet the special needs of an exceptional child will a placement outside of this setting be required

Emily Eaton

• Despite court decisions, Emily did not accept segregation.

• Emily switched to Catholic School Board and remained integrated in class with her peers through all her school years.

• In 2011 a book was published about Emily’s struggle for equality in education.

Important Disability Rights Cases: Charter/ Equality

• 1997: Supreme Court decision in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624

• A hospital refused to provide sign language interpreter to allow patient with hearing disability to communicate effectively with health care provider

• Supreme Court decided that failure to provide sign language interpretation services created adverse effect discrimination

• Effective communication was essential in the receipt of health care services and government had obligation

to ensure that everyone had equal access to the services

Some Recent Disability Rights Cases

• 2012 Federal Court of Appeal decision in Jodhan v. AG Canada, 2012 FCA 161

• Woman with vision disability could not access federal government information or apply for government jobs on-line

• Government’s computer code was not compatible with very basic screen reading software

• Federal Court: Section 15 Charter rights breach. Ms. Jodhan was deprived equal benefit of the government policy that required all government information to be on-line

• Federal government argued:– Charter does not provide a right to “internet access to information”– Ms. Jodhan had access to all the information because she could go to a

government office to request, could fax in job application, could order paper copies of documents (despite having a vision disability)

Some Recent Disability Rights Cases

• 2012 Supreme Court of Canada: Moore v B.C. Ministry of Education, 2012 SCC 61

• School board and outside professionals agreed that Jeffrey Moore needed a specific remedial program to accommodate his learning disability

• Supreme Court found that School Board discriminated against Jeffrey when it cut the remedial program without thinking about what impact this cut would have on students with disabilities or ensuring sufficient alternative services were in place.

• Decision reinforced individualized nature of duty to accommodate disability

• Court stated that accommodation is not a mere efficiency or a dispensable luxury

• Court found that special education is not a service, rather it is the means by which students get meaningful access to education services. To define special education as a service risks descending into the separate but equal approach to equality rights

• Court found that school board cannot cite costs as justification for discrimination unless the undue hardship of the costs can be proven

Some Recent Disability Rights Cases

• 2013 Human Rights Tribunal of Ontario: RB v Keewatin-Patricia District School Board, 2013 HRTO 1436

• Human Rights Tribunal applied legal framework from Moore decision: “has applicant established that because of his disability, he was denied meaningful access to service provided to all students in Ontario?”

• Tribunal found that RB was denied a meaningful education when:– EA support was reduced and school had not adequately assessed the impact of

this reduction– School did not create a behaviour plan for RB in a timely way– RB was not provided effective alternate teaching when he was excluded from

school

• Tribunal rejected the school’s argument that the mother’s conduct and advocacy prevented the school from providing access to education

Some Recent Disability Rights Cases

• 2013 British Columbia Court of Appeal: Carter v. Government of Canada, 2013 BCCA 435

• Under section 241(b) of the Criminal Code, assisting someone to commit suicide is a criminal offence.

• Court of Appeal decided that 241(b) does not violate the Charter.

• Court followed reasoning in 1993 Supreme Court of Canada decision in R. v. Rodriguez

• Case likely to be appealed to Supreme Court of Canada

UN Convention on the Rights of Persons with Disabilities

• International law that articulates what existing human rights mean within a disability context

• First time in history that civil society actively participated in development and negotiation of text of convention

• Canadian civil society active and influential during negotiation of treaty

Canada and the CRPD

• Canada ratified CRPD on March 11, 2010

• Canada must report internationally on its progressive realization of CRPD rights

• Values, principles reflected in CRPD can inform the approach that Canadian courts use to interpret Charter and other laws

• Example: Human Rights Tribunal of Ontario used CRPD to interpret Human Rights Code

• To date, Canadian jurisprudence on CRPD is limited

For more information…

• Disability Rights in Canada: A Virtual Museum:

http://disabilityrights.freeculture.ca/index.php

• ARCH Disability Law Centre:

www.archdisabilitylaw.ca

THANK YOU!