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DISABILITY RIGHTS ARE
HUMAN RIGHTS
LAURIE LETHEREN
Lawyer, ARCH DISABILITY LAW CENTRE
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WHAT IS ARCH?
• Specialty legal aid clinic dedicated to defending and advancing the
equality rights of people with disabilities in Ontario.
• Governed by a volunteer board of directors, a majority of whom are
people with disabilities.
• Offer summary advice and referral service to Ontarians with
disabilities; represent individuals as well as provincial and national
disability organizations in test case litigation at all levels of tribunals
and courts, including the Supreme Court of Canada;
• Provide education to people with disabilities on disability rights, and
to the legal profession about disability law; make submissions on
matters of policy and law reform.
You can find more details on ARCH’s website at:
www.archdisabilitylaw.ca.
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ARCH’s Work
• Promote social model of disability (disability is caused by physical,
social and attitudinal barriers. Barrier to be removed to allow full
participation for all. Not that person with disability must be “fixed” or
must just “fit in”)
• Cases we take on must have potential for a systemic benefit for
people with disabilities in Ontario
• Often represent groups in cases that may not at their core be about
disability but we bring the disability perspective to court so there is
an complete understanding of impact of outcome
HISTORY OF THE DISABILITY
RIGHTS MOVEMENT IN CANADA
Good overview of events found at
http://disabilityrights.freeculture.ca/exhibits_th_c.php
• The thinking on rights of people with disabilities began to shift from
that of being people in need to help and charity to an approach
where people with disabilities would have rights and powers.
• In the 1970s, people with disabilities began to organize. They fought
for the same basic human rights other groups were demanding -that their rightful role in Canadian society was as equal and active
participants.
• The right to be a “person” who can and should be included in
and participate in all parts of society
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HISTORY OF THE DISABILITY
RIGHTS MOVEMENT IN CANADA
During the 1970s and early 1980s, there were important events that brought
some change to the disability rights.
Canadian Human Rights Act -passed in 1976-77 gave persons with
disabilities the same rights as all other Canadians.
Influence of the American Disability Rights Movement - The civil rights
movement during the 1960s, in part sparked by the return of Vietnam
veterans lobbying for disability rights. U.S. Rehabilitation Act of 1973 helped
Americans with disabilities realize equality rights. Encouraged individuals in
the Canadian disability rights movement to push for equality rights in
Canada.
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HISTORY OF THE DISABILITY
RIGHTS MOVEMENT IN CANADA
Formation of the Coalition of Provincial Organizations of the
Handicapped (COPOH) – now Council of Canadians with Disabilities
http://www.ccdonline.ca/en/
International Year of Disabled Persons -United Nations declaration in
1981 - promotion of full participation by people with disabilities
Obstacles Report –Federal Special Committee on the Disabled and the
Handicapped
published in 1981
130 recommendations to work towards full integration of persons with
disabilities in society
HISTORY OF THE DISABILITY
RIGHTS MOVEMENT IN CANADA
Development of Canadian Charter of Rights
and Freedoms
Original Charter drafts did not include disability as
protected ground under section 15
Many Canadians organized to lobby the government for
the inclusion of rights of persons with disabilities
Fear of government was that there would need to be
change to everything from buildings to phone books to
make them accessible, and that the costs would
bankrupt the country.
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HISTORY OF THE DISABILITY
RIGHTS MOVEMENT IN CANADA
When submissions to Joint Parliamentary
Committee failed to convince disability community
decided demonstrations on Parliament Hill
were needed.
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HISTORY OF THE DISABILITY
RIGHTS MOVEMENT IN CANADA
On Wednesday January 28, 1981, Justice Minister Jean Chretien made the
announcement that the government was changing its position regarding the
Charter.
Disability was included as a protected ground.
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ONTARIO’S HUMAN RIGHTS
CODE
Around this time Ontario government passed the Human
Rights Code of Ontario
have a right to equal treatment and a right to freedom
from discrimination in the workplace, in their rental
housing, in school, stores, restaurants, hospitals, police,
at the movies, at the gym, in government offices, etc
United Nations Convention on the Rights of
Persons with Disabilities
Canada’s Commitment to the CRPD
By signing (2007) and ratifying (2010) the CRPD, Canada bound itself to the
treaty and assumed the obligations to promote, protect and ensure the full
enjoyment of human rights by people with disabilities.
The CRPD was:
• the first human rights treaty of the 21st Century;
•
first time in history that the people the convention is for were actively
participated in the development and negotiation of the text;
•
it has the highest number of signatories in history to a UN Convention.
•
demonstrate Canada’s and the other UN Member States’ dedication to
expanding the human rights and full access of persons with disabilities.
https://www.youtube.com/watch?v=uUwHIbQFszU
AODA
The Accessibility for Ontarians with Disabilities Act, 2005 (AODA)
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•
•
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Aim is to achieve a fully accessible Ontario by 2015
Achieve accessibility by having Ontario governments, business and
organizations audit and review how whether the conduct their business in a way
that is accessible to people with disabilities and create plans for improvement
Ontario has developed and continues to develop mandatory accessibility
standards that help organizations to will identify, remove and prevent barriers for
people with disabilities in key areas of daily living.
The standards apply to private and public sector organizations across Ontario.
Accessible Customer Service Standard
• Must have accessibility policy
• Train all staff and volunteers
• Communicate with clients and customers in ways that are accessible to them
• Policy
on how allow for service animals and support people
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AODA
Integrated Accessibility Standards Regulation
Accessible Information and Communications
• removing barriers to access information
• Making materials available in formats that are accessible to people with
disabilities
Employment Accessibility
• Ensuring meeting needs of people with disabilities in hiring, evaluating and
making sure employees with disabilities can continue to work
Accessible Transportation
• Sets certain specifics about things like level access, doorways, seating,
communication, of all public and some private transportation
• Also applies to transportation provided by hospital, school boards etc
Accessible Built Environment
• New construction and planned large renovations
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AODA
No way for individuals to complain if they find that they
cannot access, communicate with or use the service
Fines for companies who do not file the accessibility plans
Has raised significant awareness of the need to consider
how business or organizations interact with people with
disabilities
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Discrimination
Examples of Discrimination:
• A person is fired from her job because the employer
discovers that the employee has a disability.
• A job add that says “drivers license needed” when
you may not need to drive to do the job.
• A person is refused an apartment because they
cannot read the rental agreement.
• A person is cut-off a government benefit because she
was to report her income and she did not understand
the form. No one explains the form.
Discrimination
Examples of Discrimination:
• A worker is fired because he has taken too many sick
days.
• A person who uses a wheelchair cannot sit with her
friends in a movie.
• A person with a mental health disability is kicked out of
their housing because they have a lot of old papers and
things in the apartment and the landlord thinks it is a fire
hazard.
• Police were called when a person was feeling suicidal
many years ago and now that person is refused entry to
the United States.
Duty to Accommodate
When we talk about making sure we are protecting the rights of
people with disabilities we are talking about the duty to
accommodate
What does “Accommodate” my disability mean?
Accommodations are changes that are made or things
that are put in place to stop or prevent discrimination
Accommodations are steps taken so that the person
with a disability is not disadvantaged
Duty to Accommodate
Examples:
• Instead of “drivers license needed” must think about whether the job
can be done by using bus, streetcar, subway, bicycle or walking
• Instead of making the person with the wheel chair sit at very front or
very back of movie theatre have a way to remove a chair so that she
can sit with her friends
• The landlord connects the tenant with a social service agency who
can assist with the hoarding and to help the tenant to clean out all
the papers and other clutter
Duty to Accommodate
Examples of Accommodations:
• An employee with disability may receive permission to complete
some work at home, come to work in mid-morning not at 9:00 or
have stressful parts of the job eliminated.
• Allowing a service dog into a restaurant, store or school.
• A doctor, a lawyer or the ODSP workers may need to take extra time
to explain information in a way that the person can fully understand.
HOW ARE UNDERSTANDING OF DISABILITY RIGHTS
HAVE DEVELOPED THROUGH HUMAN RIGHTS
INSTRUMENTS
HUMAN RIGHT CASES
Direct v. Adverse Effects
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In 1985, SCC released concurrent decisions in Bhinder v. Canadian
National Railway Company, [1985] 2 S.C.R. 561 and Ontario Human Rights
Commission and O'Malley v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536.
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Court ruled unanimously that human rights law included both intentional and
unintentional ("adverse effect" or "adverse impact“) discrimination
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Very important for disability rights claims as most are argued as adverse
impact
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Policies that are neutral on face often have barriers for people with
disabilites
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HOW ARE UNDERSTANDING OF DISABILITY RIGHTS
HAVE DEVELOPED THROUGH HUMAN RIGHTS
INSTRUMENTS
Bona fide Occupational Requirements [BFOR]
In 1999, the Supreme Court released British Columbia (Public Service
Employee Relations Commission) v. BCGSEU, [Meiorin] and British
Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of
Human Rights), [Grismer].
Are what employer says are requirements of the job actually essential
size, lung capacity, having to write, drivers licence
Merely accommodating individuals to make them fit into the standard
is simply reinforcing the existing system.
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.
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HOW ARE UNDERSTANDING OF DISABILITY RIGHTS HAVE
DEVELOPED THROUGH HUMAN RIGHTS INSTRUMENTS
Policies still generally designed without considering impact on
people with disabilities
Now often see BFOR raised outside employment context
Break and scenarios
IMPORTANT DISABILITY RIGHTS
CASES
Equality 15(1) of the Canadian Charter of Rights and Freedoms
Emily Eaton v. Brant County Bd of Ed (SCC 1997)
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First 3 years of school in fully integrated setting
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School decided remaining in integrated “not in Emily’s best interests”
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Education Tribunal agreed stating that by insisting on having Emily in school
with her peers, her parents were treating her as a symbol not a person
Ontario Div. Court Agreed with Tribunal
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Ont Court of Appeal found that segregation did violate Emily’s Charter
Rights “from earliest age children with disabilities should see themselves as
part of society and children without disabilities should see them the same
way
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IMPORTANT DISABILITY RIGHTS
CASES
Both Negative and Positive outcomes from SCC decision
Negative?
• SCC decided that segregated setting did not violate Emily’s rights:
Segregation can be both protective of equality or can violate equality
depending on circumstances and person’s disability
Segregation did not burden or disadvantage Emily
IMPORTANT DISABILITY RIGHTS
CASES
Positive? SCC stated:
• Purpose of 15(1) to prevent discrimination caused by prejudices and
stereotypes
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Must address the disadvantage caused by a society based solely on
“mainstream attributes to which disabled persons will never be able to gain
access”
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Must breakdown the structures and assumptions that result in the relegation
and banishment of disabled persons from participation
•
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
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IMPORTANT DISABILITY RIGHTS
CASES
Emily fought on.
Before appealing the Div. Court decision
to the Court of Appeal, her whole family was
baptized. She switched to Catholic Board
and remained integrated in class with her peers
through all her school years.
In 2010, Emily and her family entered
China’s Forbidden City step by step despite
a declaration from their tour guide
that “it would be impossible”.
IMPORTANT DISABILITY RIGHTS
CASES
Eldridge v. British Columbia (SCC 1997)
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A hospital in B.C. had refused to provide sign language interpreter to allow
patient with hearing disability to communicate effectively with health care
provider
Courts below had found that:
• BC Medical Services Plan was not discriminatory because it treated all
those who received medical services the same
• Everyone received free medically necessary services equally
• Sign language interpretation was not a medically necessary service
SCC disagreed:
• Failure to provide sign language created adverse effect discrimination
• Effective communication was an essential component in the
receipt of health care services and government had obligation
to take special steps to ensure that all had equal access to
the services
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IMPORTANT DISABILITY RIGHTS
CASES
SCC recognized that the historical disadvantage experienced by persons
with disabilities is an important aspect of a s. 15 contextual analysis:
This historical disadvantage has to a great extent been shaped and
perpetuated by the notion that disability is an abnormality or flaw. As a
result, disabled persons have not generally been afforded the "equal
concern, respect and consideration" that s. 15(1) of the Charter
demands. Instead, they have been subjected to paternalistic attitudes
of pity and charity, and their entrance into the social mainstream has
been conditional upon their emulation of able bodied norms.
(Social Model of Disability)
Some Recent Disability Rights
Cases
Jodhan v. AG Canada 2012 FCA 161
Woman with vision disability could not access on-line government
information and could not apply for jobs through the required job bank portal
Government’s computer code was not compatible with very basic screen
reading software
Federal Court: Section 15 Charter rights breach. She was deprived equal
benefit of the government policy that had required all government
information to be on-line
Federal government argued at Federal Court of Appeal:
Charter does not provide a “right to internet access to information”
Ms. Jodhan still had access to all the information because she could
go down to a government office to make a request, could fax in job
application, could order paper copies of documents (remember she is
legally blind!)
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Some Recent Disability Rights
Cases
Government lost at FCA
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Moore v B.C. Ministry of
Education
Moore v B.C. Ministry of Education 2012 SCC 61,
Both board and outside professional had agreed that Jeffrey needed this
remedial program as an accommodation of his learning disability
When he was about to enter the program the school board shut it down and
did not replace with similar type of supports
School board found to have discriminated because when they made budget
decisions they did not consider impact of cuts to
students with disabilities
“Special education” is not a service - it is the
means by which students get meaningful
access to the general education services
cuts made in 1994
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Moore v B.C. Ministry of
Education
“To define ‘special education’ as the service risks descending into
the ‘separate but equal approach” to equality rights”
Accommodation is not a “mere efficiency or a “dispensable luxury”
School cannot cite cost unless undue hardship proven
decision not really about Jeffrey
any longer
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Other Important Recent Disability
Rights Cases
Attorney General of Canada, et al. v. PHS Community Services
Society, et al. (Insite Case)
Provisions of Controlled Drugs and Substances Act meant that
those using safe injection site could face possession charges and
those working there could be aiding and abetting
Federal government had refused to provide exemption for site
Supreme Court:
Refusal was contrary to Charter Section 7 rights to not be deprived
of life, liberty or security of the person
looked at the importance of this site to improving and saving lives of
people with the disability of an addiction
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THANKS
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