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ARCH Disability Law Centre
HISTORY OF THE DISABILITY RIGHTS MOVEMENT
IN CANADA
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1970’s and 80’s significant events impacted the Disability Rights Movement in Canada
Good overview of events found at http://disabilityrights.freeculture.ca/exhibits_th_c.php
• The 1970s represents an era of social change in Canada, marginalized seeking empowerment to effect social and legal changes
• A predominant view in society projected persons with disabilities as dependent on charity.
• In the 1970s, people with disabilities began to organize. Demanding that their rightful role in Canadian society as equal and active participants.
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Provincial, Federal and International Laws
Ontario Human Rights Code - June 1962
Canadian Human Rights Act – 1977
Canadian Charter of Rights and Freedoms -1982
Convention on the Rights of Persons
with Disabilities - 2007
- Canada ratified 2010
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RECOGNIZING BARRIERS
ORGANIZING PROMOTING RIGHTS
Formation of the Coalition of Provincial Organizations of the Handicapped (COPOH)
1981 International Year of Disabled Persons
Obstacles Report –Federal Special Committee on the Disabled and the Handicapped
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IMPORTANT DISABILITY RIGHTS CASES
Emily Eaton v. Brant County Bd of Ed
First 3 years of school Emily was in fully integrated setting
School decided remaining in integrated “not in Emily’s best interests”
Education Tribunal: “by insisting on having Emily in school with her peers, her parents were treating her as a symbol not a person”
Ontario Court of Appeal found that segregation did violate Emily’s Charter Rights
“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
Supreme Court Decision 1997
Both Negative and Positive outcomes
Negative
• 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
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IMPORTANT DISABILITY RIGHTS CASES
Positive
• integrated setting always first step
• 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
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IMPORTANT DISABILITY RIGHTS CASES
Eldridge v. British Columbia (SCC 1997)
• hospital refused to provide sign language interpreter to allow patient to communicate with health care provider
Courts below had found that:
• not discriminatory because treated all those who received medical services the same
• sign language interpretation was not a medically necessary service
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IMPORTANT DISABILITY RIGHTS CASES
SCC disagreed:
• effective communication was an essential component in the receipt of health care services and Government had obligation to ensure that all had equal access to the services
• disadvantage has been perpetuated by the notion that disability is an abnormality or flaw.
• not afforded the "equal concern, respect and consideration"
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Some Important Recent Disability Rights Cases
Jodhan v. Attorney General of Canada 2012
• woman with vision disability could not access on-line government information and could not apply for jobs
Federal government argued:
• Charter does not provide a “right to internet access to information”
• still had access to all the information because 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!)
GOVERNMENT LOST THE APPEAL
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Some Important Recent Disability Rights Cases
Moore v. British Columbia (Education) 2012
• failure to accommodate student identified with severe learning disabilities
• Supreme Court reinforced the individualized nature of the duty to accommodate
• “special education” is not a service - it is the means by which students get meaningful access to the general education services
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Some Important Recent Disability Rights Cases
• “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
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Some 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 CDSA
Supreme Court:
• refusal was contrary to Charter Section 7 rights to not be deprived of life, liberty or security of the person
• the impact on those using the facility was grossly disproportionate to the purpose of the CDSA
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Important Upcoming Disability Rights Cases
Carter v. Government of Canada (heard by BCCA 2013)
• woman with physical disability that limits her ability to take her own life if she so chose
• under section 241(b) of the Criminal Code, assisting someone to commit suicide is a criminal offence.
The B.C. Supreme Court:
• 241(b) violates Charter because it places an unequal burden on people with physical disabilities
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Important Upcoming Disability Rights Cases
• the effect of the absolute prohibition was grossly disproportionate to its effect on protecting vulnerable people
• because the law is overbroad and grossly disproportionate, the deprivation of life, liberty and security of the person was not in accordance with the principles of fundamental justice
LIKELY TO BE HEARD BY SUPREME COURT IN FUTURE
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THANKS