DISABILITY RIGHTS ARE HUMAN RIGHTS LAURIE LETHEREN Lawyer

____________________ ___ DISABILITY RIGHTS ARE HUMAN RIGHTS LAURIE LETHEREN Lawyer, ARCH DISABILITY LAW CENTRE 1

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. 2

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 1970 s, 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 4

HISTORY OF THE DISABILITY RIGHTS MOVEMENT IN CANADA During the 1970 s and early 1980 s, 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 1960 s, 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. 5

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. 7

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. 8

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. 9

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 21 st 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=u. Uw. HIb. QFsz. U

AODA The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) • • 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 12

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 13

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 14

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 • 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. • Court ruled unanimously that human rights law included both intentional and unintentional ("adverse effect" or "adverse impact“) discrimination • Very important for disability rights claims as most are argued as adverse impact • Policies that are neutral on face often have barriers for people with disabilites 20

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. 21

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) • First 3 years of school in fully integrated setting • School decided remaining in integrated “not in Emily’s best interests” • 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 • • 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 24

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 • Must address the disadvantage caused by a society based solely on “mainstream attributes to which disabled persons will never be able to gain access” • 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 26

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) • 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 28

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!) 30

Some Recent Disability Rights Cases Government lost at FCA 31

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 32

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 33

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 34

THANKS 35