December 12, 2010
By Chris Bowerman, Writer
Dec. 12, 2010/ Troy Media/ – Canada’s success in rooting out discrimination is often lost in a national debate that focuses on the failings of human rights
The country’s system of meting out justice in cases of inequality is not without its many bright spots, however.
In one particular case concluded earlier this year, a complaint concluded in a triple-whammy success for the federal human rights agencies, disabled Canadians and Elections Canada.
In relatively swift succession, an informed citizen’s complaint was investigated by the Canadian Human Rights Commission, referred to the tribunal, and
resolved with co-operation from the respondent – Elections Canada – which is implementing comprehensive orders to reform its electoral procedures and training.
Complaint lodged by disabled Canadian
The Hughes Decision, arising from a complaint lodged by disabled Unitarian minister Dr. James Peter Hughes of Toronto and handed down Feb. 12, 2010, has long-term, nationwide implications.
As the Reverend Dr. Hughes describes his condition, he is handicapped by post-polio syndrome, which requires him to use a walker or manual wheelchair. His complaint is about discriminatory barriers for disabled Canadians – physical obstacles – that “make you feel like a second-class citizen,” he says.
Hughes started his quiet but arduous journey after a particularly humiliating experience: descending stairs by the seat of his pants, frustrated and exhausted, while trying to gain access to a polling station to exercise his Charter right to vote in a federal byelection.
It happened, coincidentally, at St. Basil’s Church in downtown Toronto, where Rev. Hughes and his wife Lynn repatriated after his steadily advancing disability forced him to retire in 1999, at age 47, from his ministry in Providence, Rhode Island.
On March 17, 2008, the wintry day of the byelection, Hughes faced several barriers, denying him fair electoral access: a steep, winding path to the front
door; a locked and unusable door to a handicap ramp; at another entrance, the flight of stairs; and private polling booths placed too close together to
allow access for persons using a walker or wheelchair.
He lodged his first complaint orally, right there to an Elections Canada (EC) official who, according to the tribunal’s decision, “replied that the lack
of accessibility was for financial reasons and that ‘in federal byelections they are not given sufficient funds to have an accessible polling station.’
Mr. Hughes was ‘appalled’.”
Exacerbating Hughes’ ordeal that day were heavy, steel exit doors and a snowy, slippery downward slope outside the venue. Without assistance, his other option was a freight elevator with “the effect of a segregated entrance.”
“My ideal,” Hughes says, “is that everybody can go through the same door.”
He sent a letter of complaint to Elections Canada in Ottawa, but felt the response was unusually slow and dismissive.
On June 5, 2008, encouraged by his sister, human rights lawyer Kate Hughes, he filed a complaint with the Canadian Human Rights Commission.
While the Commission investigated – later bypassing an alternative dispute resolution and referring the complaint to the Canadian Human Rights Tribunal
on Dec. 29, 2008 – Hughes, appalled again, encountered almost identical voting barriers during the federal election on Oct. 14 at the same Toronto church.
Scoring one for the disabled team
Architect and accessibility expert Robert Topping was dispatched to St. Basil’s Church, and his report was tendered at a tribunal hearing in October 2009.
Alerted to the case by Kate Hughes and a disability rights expert, Ryerson University professor Catherine Frazee, the national not-for-profit Council of
Canadians with Disabilities (CCD) filed an affidavit with the tribunal, which granted CCD’s request for interested party status.
CCD policy advisor Jim Derksen co-founded the human-rights organization in 1976. He also uses a wheelchair; like Hughes, he also has a post-polio disorder.
Derksen says the “expense, time and misery” of going through the court system is sometimes a worthwhile option. “When you get a case through the courts and get a decision,” he says, “it’s like getting it through the goal posts. But until that happens, you can’t really score.”
He says the CCD doesn’t have the resources to carry many cases itself, so they ask the court for standing as an intervenor or interested party in hearings “where we think the decision will take jurisprudence. Then we present arguments to the court so the decision will uphold the rights of Canadians with disabilities-what we call a precedent.”
The Feb. 12, 2010, Hughes Decision created a precedent, Derksen says, when the tribunal ordered Elections Canada “to cease from situating polling stations in locations that do not provide barrier-free access in any electoral district in Canada.” Derksen adds that both the tribunal and Elections Canada have acknowledged the veracity of Hughes’ complaint and are now “really engaged” with the process.
John Enright, spokesman for Elections Canada, says, “We’re working closely with Mr. Hughes and the CCD – so we’re taking it to heart.”
He says EC has consented to a number of remedies. Its six-month commitment is to implement a process to record oral complaints, and verify accessibility of facilities on polling days. Its 12-month commitments include a proposal to review the full training program and all training materials, and to review accessibility guidelines and checklists.
Complaints tracking and reporting of EC processes will also be disclosed in Parliament by the Chief Elections Officer of Canada.
The Hughes Decision is a win for voters too, Enright says. “Under the Canadian Elections Act, every Canadian 18 years of age and over should have access to polling stations.”
Derksen says “the administrative reform could be used as an example for other complicated systems. If we can get Elections Canada to do a good, rigorous reform, it will be a benchmark for Canadians with disabilities.”
Hughes remains cautiously optimistic.
Decision not an ‘unqualified success’
“As a procedure, it’s been quite a success so far,” Hughes says. “I can’t say it’s an unqualified success until we see what actually happens during elections.
It won’t be a failure if there are people who are frustrated with the voting process in the next election-if the complaints procedure works and if things
are brought to people’s attention. And if Elections Canada has better standards in training and getting people out there looking at the polling sites and
leases, making sure completely ridiculous sites are not in their database.”
As for the legal tribunal process, Hughes felt it went very well. “That was an unqualified success and the ruling was extremely in our favour,” he says.
“The attitudes I encountered among people with Elections Canada have been very positive, so I’d say we’re three-quarters of the way there. But the last
quarter is the most important: how this actually gets implemented.”
A real impediment to change, he says, is silence. “People, in general, are trained not to complain. Especially people who are handicapped – they feel marginalized; they feel that whatever they say will never result in anything. Maybe because of the way they were treated in the past.”
That is, they way they were treated before the Hughes Decision.