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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!