ARCH Alert December 03, 2012

HAPPY INTERNATIONAL DAY FOR PERSONS WITH DISABILITIES – DECEMBER 3

(Image above is the United Nations logo with the addition of the word “enable”)

Inside This Issue
International Day for Persons with Disabilities / 1
ARCH’s Holiday Office Hours / 2
Supreme Court of Canada Confirms Duties of School Board in Meeting Needs of Students with Disabilities / 2
An important Victory for Equality and Access to Justice Rights for People with Disabilities / 3
Empowerment Council Granted Standing at Ashley Smith Inquest / 5
Ontario Human Rights Review Completed / 6
Ontario’s Ombudsman Announces that He will Investigate Services for Adults with Developmental Disabilities / 8
Recommendation of the Social Assistance Review: Brighter Prospects? / 8
Working with Deaf Clients and Clients with Hearing Loss / 10
Inclusive Design Institute: Designing for the FullRange of Human Diversity / 11
Recent International Resources on Women and Girls with Disabilities / 11
The Campaign for a Living Wage / 13
COMMUNITY EVENTS / 14
Publications at ARCH / 17

ARCH’s Holiday Office Hours

ARCH Disability Law Centre will be closed on the following days duringthe holiday season:

  • Monday December 24, 2012 after 12:00 pm
  • Tuesday, December 25, 2012 to Tuesday, January 1, 2013

Season’s Greetings from all of us at ARCH!

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Supreme Court of Canada Confirms Duties of School Board in Meeting Needs of Students with Disabilities

By Robert Lattanzio and Laurie Letheren, Staff Lawyers

On November 9, 2012, the Supreme Court of Canada released a decision today in Moorev. British Columbia (Education). This decision will be extremely important to students with disabilities in the general education system.

In this case, the Supreme Court affirmed the decision of the British Columbia Human Rights Tribunal in which the Tribunal found that the failure of the school district to meet Jeffrey Moore’s needs as a student with a disability was discriminatory. The Court found that the goal of general education is that “all children should be afforded opportunities to develop their full potential … and the District did not take all the steps necessary to give Jeffrey the education to which he was entitled.” In reaching this conclusion on discrimination, the Supreme Court confirmed, the school board must show that “it could not have done anything else reasonable or practical to avoid the negative impact on the individual” …”accommodation is not a question of mere efficiency”.

One of the central issues that the Supreme Court addressed at the hearing on March 22, 2012 was the meaning of “services” for students with disabilities in the education context. The majority of the British Columbia Court of Appeal had determined that for students with disabilities who access supports through “special education services”, the meaning of “services” is the “special education services”. Represented by Roberto Lattanzio and Laurie Letheren of ARCH, the Canadian Association for Community Living (CACL) had intervened in the appeal before the Supreme Court. The focus of CACL’s submissions was on the meaning of service. CACL argued that to define service in this context as “special education services” promotes exclusion of students with disabilities from the general education services that are to be available to all. This is inconsistent with the goals and principles of human rights legislation and the Convention on the Rights of Persons with Disabilities.

The Supreme Court agreed that the lower courts had erred in defining “special education” as the service. Justice Abella, who wrote the decision on behalf of a unanimous Court, rejected the separate but equal approach that this meaning of services promoted. The Court stated, “Comparing Jeffrey only with other special needs students would mean that the District could cut all special needs programs and yet be immune form a claim of discrimination.”

Another important factor that the Court considered in concluding that the District had discriminated against Jeffery Moore was that the school District was aware of the importance of supports that Jeffrey needed but the District had not considered the impact or planned for alternatives when it cut the program that Jeffrey needed.

The Supreme Court ordered that the District pay the Moores the cost of the private schooling that Jeffrey had to attend in order to achieve his true potential in his education and to pay for the damages for the harm that Jeffrey suffered. In addition, the Court ordered that Moore’s costs throughout this very long litigation process be paid by the District.

In ARCH’s view this is a very positive decision for students with disabilities. Robert Lattanzio and Laurie Letheren are “pleased to see that the Supreme Court affirmed what ARCH has often argued is the procedural duty on school boards when they are accommodating the needs of students with disabilities. The school cannot simply say, ‘this is what we will offer the student’. The Court has clearly stated that school boards must make a full assessment of all the alternatives that could be available in accommodating the needs of students with disabilities.” As Michael Bach, Executive Vice-President of CACL has stated, “Special education has been a ‘dead end’ for far too many students with disabilities. This judgment makes it clear once and for all. The real test of special education services is whether they provide the “ramp” to educational services to which all children are entitled. And, as required under the UN Convention on the Rights of Persons with Disabilities, such services must, by definition, be inclusive. Special education has to be designed to make that happen for all.”

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An important Victory for Equality and Access to Justice Rights for People with Disabilities

By C. Tess Sheldon, Staff Lawyer

The Supreme Court of Canada (SCC) recently released its decision in Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society. That decision is an important victory for equality and access to justice rights in Canada, particularly for the most marginalized in our society. ARCH was granted intervener status at the Supreme Court as part of a coalition with Justice for Children and Youth (JFCY) and West Coast LEAF.

Until the SCC released its decision in this case, a three-part test governed which public interest groups were allowed to seek to challenge legislation or government action on behalf of marginalized communities. Unfortunately, the test had been interpreted to mean that a group should not be granted “public interest standing” if there was any possibility that an individual litigant could challenge the legislation or action. Given the realities of the lives of members of equity seeking groups, it is likely that most would not have the resources to mount comprehensive systemic challenges to the regimes that oppress them. Additionally, it placed the burden of testing the constitutionality of law or government action onto our most marginalized community members.

This case involves an organization of women called the Downtown Eastside Sex Workers United Against Violence (SWUAV) and Sheryl Kiselbach, a former sex worker with 30 years experience who now works with street-based sex workers. SWUAV and Kiselbach filed a constitutional challenge to the Criminal Code provisions around prostitution.

Before a Court got a chance to decide whether certain Criminal Code provisions around prostitution were unconstitutional, the Federal Government asked the court to find that Sheri Kiselbach and SWUAV did not have the right to challenge the laws. The issue in dispute was whether there was another reasonable and effective way to bring the challenge of the prostitution provisions before the court, including raising Charter arguments during the prosecution of a sex worker charged under the Criminal Code. In 2008, the British Columbia Supreme Court agreed with the government, finding that SWUAV did not have “public interest standing” to challenge the constitutionality of the Criminal Code provisions. The British Columbia Court of Appeal reversed that decision.

ARCH, JFCY and West Coast LEAFintervened to argue that organizations (like SWUAV) ought to be able to bring forward important constitutional cases on behalf of people who do not have effective access to the justice system on their own. Individuals with disabilities face considerable obstacles to accessing justice and advancing their legal rights in court.

In September of this year, the SCC unanimously ruled that SWUAV and Ms. Kiselbach should both be granted public interest standing. The SCC found that the motion judge applied the three-part test for public interest standing too rigidly in that he required SWUAV to show no other means for litigating the issues. The SCC held that courts should consider the “practical realities” of litigation, such that it is “very unlikely” that a person charged under the prostitution-related provisions would challenge those laws. The SCC also acknowledged that public interest litigation may “provide access to justice to disadvantaged persons in society whose legal rights are affected.” The ruling means that SWUAV and Ms. Kiselbach can return to the B.C. Supreme Court to pursue the Charter challenge.

The decision is important since it paves the way for greater access to our courts for vulnerable persons, including persons with disabilities. The SCC recognized the practical barriers that marginalized individuals face in bringing forward complex constitutional litigation, and has affirmed the right of individuals to work collectively to challenge laws that heighten their vulnerability.

ARCH was granted intervener status as part of a coalition with Justice for Children and Youth and West Coast LEAF. Clearly, the work was its best as a result of this collaboration.

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Empowerment Council Granted Standing at Ashley Smith Inquest

By Karen R. Spector and Tess Sheldon, Staff Lawyers

The inquest into the death of Ashley Smith is scheduled to commence on January 14, 2013. Coroner Dr. John Carlisle is presiding.

Ms. Smith was 19 years old when she died on October 19, 2007, while she was an inmate at the Grand Valley Institution for Women in Kitchener, an adult penitentiary operated by the Correctional Service of Canada within the province of Ontario.

ARCH Disability Law Centre has been working jointly with Justice for Children and Youth (JFCY) in representing the Empowerment Council at the inquest. Mary Birdsell at JFCY is counsel to the Empowerment Council. The Empowerment Council is an autonomous, member-run organization that consists of persons who are recipients or former recipients of mental health and/or addiction services at the Centre for Addiction and Mental Health. The Empowerment Council serves as the voice for consumers/survivors of the mental health system in its aim to advocate on a systemic level on behalf of mental health and addiction clients.

On September 24, 2012, the Empowerment Council was granted public interest standing at the inquest. The Empowerment Council was recognized as being able to provide the inquest with a unique perspective on the use of, effects, and alternatives to the use of restraints and seclusion for people with mental health issues. The Empowerment Council was also found to have a unique contribution in respect of the effects on a person’s mental health when involved in a system where one’s rights are violated including the rights to consent and refuse to consent to treatment. Finally, the Empowerment Council was also found to have a valuable contribution to make on how correctional officers relate to persons with mental health issues.

Over the past few months, the inquest has dealt with a number of preliminary motions which attempted to further shield Ashley’s death from public scrutiny. In particular, the Correction Service of Canada and the individual doctors brought a motion to narrow the scope of the issues being explored at the inquest. In addition, the Correctional Service of Canada also brought a motion to prevent from public view a number of videos of Ashley Smith’s treatment while she was in their custody.

The Empowerment Council resisted these motions and argued that in circumstances where Ashley Smith’s death occurred behind prison walls, an overly restrictive scope would only serve to perpetuate the conditions in which Ashley died and avoid the necessary public scrutiny contrary to the sprit and purpose of the Coroner’s Act. These motions made by Correction Service of Canada and the doctors were ultimately denied or abandoned. (The Correctional Service of Canada withdrew its motion to narrow the scope of the inquest.) In the end, the inquest goals of transparency, public oversight and accountability prevailed.

This inquest is important for people with disabilities as it will examine alternative ways in which the correctional system can treat persons with disabilities so as to enhance, empower and promote their dignity, autonomy and ultimate reintegration.

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Ontario Human Rights Review Completed

By Laurie Letheren Staff Lawyer

In 2008, the system for making claims of discrimination under Ontario Human Rights Code was overhauled. The changes to the Ontario Human Rights Code included a mandatory 3 year review of the new system. In August 2011, Mr. Andrew Pinto was appointed as the person to conduct the review. As part of his review, Mr. Pinto conducted a public consultation, invited written submissions and met with various stakeholders. ARCH participated in this public consultation process. To read ARCH’s submission, click ARCH Written Submission of Ontario Human Rights Review or copy and paste

Mr. Pinto recently released his report on the conducted review. To access the full report, click Ontario Human Rights Review 2012 or copy and paste

Mr. Pinto reported that in general those who participated in the review indicated that the Human Rights system in Ontario was much more efficient than it had been prior to the 2008 changes. Most reported that cases were resolving much more quickly and there was greater transparency in the system. However, Mr. Pinto reported that participants repeated a number of the same concerns, including the following:

  • The Human Right Legal Support Centre offers high quality services but it does not have the resources to meet the demands for its services
  • Too many applicants are self-represented at the Tribunal whereas respondents are almost always represented
  • The Tribunal’s forms and rules are too complex
  • More public education and information on the human rights system is needed, particularly for vulnerable individuals and marginalized communities
  • The current role of the Ontario Human Rights Commission is not well understood and it should be more involved in applications at the Tribunal
  • The Human Rights Tribunal, Human Right Legal Support Centre and Ontario Human Rights Commission should better coordinate their services

The report concludes with 34 recommendations for improving the delivery of the human rights system in Ontario. Some of the recommendations are specific to the services provided by each of the Human Rights Tribunal, Human Right Legal Support Centre and Ontario Human Rights Commission while others are recommendations that might be implemented by the system as a whole.

One of the suggestions made by ARCH to help to improve the accessibility of the Human Rights Tribunal was that the Tribunal should establish an Accessibility Office which would act as a centralized point for persons with disabilities. In this way, the Tribunal would have access the specialized expertise of the Office in order to develop consistent solutions to the barriers experienced by Applicants with disabilities. Mr. Pinto suggested that this “innovative suggestion” made by ARCH could assist in improving the accessibility of the Tribunal.

Some of the other recommendations made by Mr. Pinto which may be of particular interest to people with disabilities who are accessing the human rights system in Ontario are:

  • Improving the usability and accessibility of the Tribunal’s forms
  • Tribunal should attempt to hold mediations early in the process
  • Tribunal should release details on settlement terms reached through mediation
  • Tribunal should consider how to improve its regional presence
  • Human Rights Legal Support Centre should make attempts to lessen its wait times
  • Human Rights Legal Support Centre should have more staff outside of Toronto
  • Human Rights Commission should develop a litigation strategy for advancing systemic cases
  • Commission should establish and maintain a unit that would offer telephone and/or internet based summary advice and information to assist respondents comply with their human rights obligations.

ARCH agrees with many of the recommendations made by Mr. Pinto. It is now up to the public to put pressure on the Attorney General of Ontario to consider the recommendations and take steps to further improve Ontario’s human right system.