Pirates of the Accommodation

By Victor Schwartzman
July 4, 2011

Hitting the nail on the head: construction, accommodation and empowerment
“Arrrh, scalawags, there will be no parlay about accommodation,” the evil Captain Barbarossa might croak to someone wanting to ensure physical accommodations are made under the BCBC (British Columbia Building Code). The Captain would add, “You see, the BCBC isn’t so much a Code as it is a guideline.”

Which is why Paul Caune feels that the Black Pearl, aka the B.C. Ship of State, needs to haul into port for some badly needed reforms.

Reforms which will create universal laws (not guidelines) for accommodation in new and old buildings. Reforms which will ensure those laws are enforced. Reforms which mean that the average person who needs to can file a complaint that will be effectively addressed.

Is there a problem? No one knows. And that is a problem in itself.

Do municipalities have a process to ensure accommodation law is respected, and that (for example) the expense of such accommodation does not mean the law is not “forgotten”? It appears no one from the Black Pearl has bothered to find out or to ensure all municipalities treat accommodation law with the same respect.

The real issue is that the individual with challenges is again often abandoned, that however it happens, a person with challenges is a second class citizen who must struggle to have his or her voice heard.

A Code or a Guideline?

The BCBC is Provincial legislation which addresses, among other construction issues, accommodation for people who have challenges which affect their mobility. It really addresses new construction­old buildings are usually grandfathered until they are renovated.

The BCBC is based on the National Building Code. What is in the Code is hard to say, as you have to pay well over a hundred dollars at a minimum to see the law of the land. For some reason you have to pay to see our building and fire codes. Knowing what the law is can be a problem if you are on a limited income, therefore. Of course, the Building Code is available for free­to look at. But you have to get down to the local municipal offices (which are hopefully accessible) and read it. Can’t take it with you, can’t read it online. A bit of a problem for those people who have sight impairments, as there is no indication any municipality has the BCBC in Braille.

Also, since the Code is thick, you likely won’t get your information in one go. You have to keep coming back, a bit of a problem for those on a fixed income and with mobility impairments. The individual has been put at a huge disadvantage, compared with construction companies which can afford to pay the fees and for lawyers to read the Code.

A free downloadable pdf about the accommodation sections of the BCBC is available. The pdf is extensive and just what you need. It addresses only those sections of the BCBC on accommodation issues, but appears to address anything relevant on accommodation. Kudos to those who wrote it!

Unfortunately, the pdf it is not easy to locate. You will not find it on the websites which come up when you type BCBC or building codes into a search engine. Nor is it obvious on the government website–at first. However, by clicking into the B.C. government website’s disability section, eventually one arrives at a web page where you can download the pdf. The download is free. It’s large, 4 megs. Congratulations to the BC government, for providing this information, which is excellent, for free. Raspberries for not making it quick and easy to find by keeping it under the waves. So if you combine the congratulations and raspberries, the sum total is that the BC government is awarded congratuberries.

In Canada there are no Federal laws requiring accommodation. Following the National Code, each Province writes up its own standards, just as each Province writes up its own human rights legislation. In B.C., responsibility for enforcing the BCBC falls upon each municipality. There is no governmental body that ensures the Code is followed throughout the Province.

Aarrrrh! Maties, under the smooth seas of the BCBC lie your hidden rocks and shoals, including accommodations which were not made or were made incorrectly. Mistakes can occur in the best situations. But all those are hidden problems and there is no way to track them. That enables the Black Pearl to ride over any problems with ease. Challenging failures under the BCBC is difficult and generally far from the public eye. How well the BCBC is enforced varies from municipality to municipality.

Empowerment is different and better in the U.S.

“In comparison, the United States has a very different system,” says Paul Caune, Executive Director of Civil Rights Now!, a nonprofit organization based in Vancouver and dedicated to improving the law on accommodation issues (www.civilrightsnow.ca).
“We’ve lost some and won some on the Charter. Compare that to the United States, where under the Americans with Disabilities Act the U.S. Justice Department enforces the legislation through litigation when informal agreement does not work.

“That is a fundamental difference between here and the U.S. Here, the way it works, it doesn’t. The way it is set up, you are denied equal rights. It is not set up to ensure enforcement or to empower individuals. That’s been my own experience as a person with physical challenges.

“In the U.S. there are mandatory Federal accommodation standards. Here it varies from Province to Province. In the U.S. there is a mechanism to enforce those standards, where an individual person can appeal. Apart from a complaint under human rights legislation, which can be time consuming for the individual without a solid result for a long time, there is no mechanism in Canada to enforce those standards.”

To make matters worse, the powers of human rights codes have been eroded over the years. Not only have the legal precedents grown more conservative, the investigate-and-resolve functions of many Commissions have been eliminated, with the Commissions being turned into Tribunals. That ensures a long, hard road when a ‘respondent’ won’t be a good Canadian and cooperate. A decision may be reached long after the construction is complete.

Invisible Barriers and Invisible Advocates

Caune sees the BCBC as not a real Code, just guidelines. “The B.C. Human Rights Code says public places should be accessible, but it goes case by case these days, and takes a lot of personal time and energy some of us don’t have. It’s an invisible barrier to justice.

“Actually, our system could work fine. But it relies on advocates to ensure accommodation, and in the last few years too many of us have proven ineffective. Our creative energy seems faded. We have a mediocre, passive, colonial mentality. The generation who suffered through the Great Depression, World War Two, they were forced by situations to learn how to be effective. That generation has passed. These days the disability movement mostly has managers, not leaders. Managers by definition do not want to rock the boat.

“In B.C, the biggest reform was getting rid of the institutions. That was driven by people outside the bureaucracy, not inside. They achieved a huge victory for common sense and decency.

“But that was last century.

“And then the energy disappeared. People project onto Terry Fox and Rick Hansen something about the lives of people with disabilities in BC that isn’t true. There is a huge response to Terry Fox, which was a very good thing because that led to $500 million in donations. Rick Hansen had a global response to Man In Motion, which we all hope will one day lead to a cure. But the Fox and Hansen causes are cures for cancer or spinal cord injury, not effective civil rights, which is a pressing need for most British Columbians with disabilities.

“Civil rights is a major issue for people who have a disability. There is a long, ugly history here, including sterilization and forced institutionalization.”

Reforms Come Only From Activism and Pressure

Caune sees left and right as sharing the problem. Problems with enforcing the building code are the tip of an iceberg, an iceberg The Black Pearl successfully avoids. How the BCBC works is an example.

“Most abuse inflicted on people with disabilities comes from government employees who are just doing their job. We need laws that take into account where the abuse comes from and why. We need reforms that empower the concerned bureaucrats to blow the whistle, and not get blown away.

“We need Canadians with disabilities to get as aggressive as the Americans and British have been in protecting their civil rights. Why should anyone depend on good will for their civil rights?”

An example of American activism Caune points to involves education for children who have challenges. “In Washington State, when they joined the Union, the State Constitution said every citizen of Washington had a right to an education. In the late sixties and early seventies, that was used by parents of children with disabilities. The courts agreed that every citizen has a right to an education. The parents’ lobbying campaign became a model for a federal law. We could do that here with enforcing the building code and making it accessible.”

That law, as Wikipedia notes, is The Individuals With Disabilities Education Act (IDEA), a United States federal law governing how States and public agencies provide early intervention, special education and related services to children with disabilities. It addresses the educational needs of children with disabilities from birth to age 18 or 21, in cases that involve 13 specified categories of disability.

“Under the IDEA Act, you can sue a school for not providing proper education to a child. It’s direct and it works. We need that here. We need it for all our accommodation issues.”

Activism Can Never Sleep

As another reason why reform is needed, and why advocates must remain vigilant and not rely only on good will, Caune cites the Hewko case.
The website Autism Funding in B.C. (www.asdfunding.com) notes about Hewko:
The Hewko case has a major bearing on the quality of education for our children. The BC Supreme Court ruled that the Abbotsford School District breached its statutory duty to meaningfully consult with a student’s parents regarding the education of their autistic child. As a result of Hewko, there are three main parent/child rights:

  • The right to consult. This means that the parents cannot simply be “told”, but have a right to participate fully in their child’s education. They also have the right to be consulted prior to an aide being assigned. The aide must have “instructional control” over the child. This is not the same as “functional control”. The child does not need a babysitter. They need the right circumstances for learning.
  • The right to review files. Parents can view all student records (unless it’s a protection/abuse case) and request copies. The Freedom of Information and Protection of Privacy will apply.
  • The right to an Individual Education Plan (IEP). This is done with everyone concerned in one room. Parents can refer back to this document in the future to see if the child’s education is progressing in the specified manner.

But Caune says that victory may have been short lived and limited. “Unfortunately, after all of that individual effort and expense by the people who ‘won’, not enough, if anything, has changed. Some School Boards, after that decision, continue to tell parents of autistic children that the decision only applies to Abbotsford.

“It is unbelievable that School Boards do not know the fundamental principles of law. It is believable that to save money against a constituency that can’t or won’t or doesn’t know how to fight back, they would ignore those fundamental principles.

“We have laws, but they are not being enforced for either political or financial reasons. The governments think you can’t afford to have a society where people with disabilities have civil rights.”

Evaporating rights

“I don’t want to give the impression of a conspiracy. It is not. It is unthinking. Bureaucrats and politicians ignore or are unaware of the effects of their actions, which is to deny equal protection under the law. We need laws to eliminate that. That is the core issue. Rights that are enforced, not charity.”

How to fire up Canadians to ensuring such reforms, that’s another question.

“Before people can unite on a goal, they have to hear from people with disabilities. They have to know what is happening. If people with disabilities stay silent, they are complicit. The average person is deceived by the silence. They think everything is okay when it isn’t. The passivity is creepy.”

Perhaps if the Province did not occasionally act like Captain Barbarossa, it might be easier to parlay with it….

B.C. Disability Swamp Update:

In late June, 2011, a teenager was discovered alone with her dead mother. The mother had been dead for a week, and the child, who has Down’s Syndrome, did not know what to do. She attempted to keep her mother alive with uncooked macaroni and medicine. After a week, concerned neighbours broke into the family trailer and found the girl, saving her. The many social workers and agencies involved with the family were nowhere to be seen.

“Civil rights is a major issue for people who have a disability,” says Caune. “There is a long, ugly history, including sterilization and forced institutionalization. As much as it can, the system will ignore you. There’s the recent story of the girl with Down’s Syndrome who nearly starved to death from neglect after her mother died. It took neighbours to break in and help. The system actually blames the mother, although it acknowledged she was not a sophisticated person able to access help in a complex system.”

The Globe and Mail, covering the story, wrote: “In fact, when the mother’s income assistance was cut off last summer because she failed to file the required paperwork, no one at the Ministry of Social Development informed the Ministry of Children and Family Development that the girl was now living in a home with no income. They [income assistance payments] were cancelled without planning for the dependent daughter with special needs,” said
Ms. Turpel-Lafond (Children’s Advocate), who described the scenario as “shocking. It is one example of the many times the mother’s difficulty obscured a much-needed focus on the child, and how invisible this child’s needs were to the systems in place in British Columbia.”

Is it any wonder Caune says that most abuse of people with disabilities comes from government bureaucrats?