By John Rae
December 18, 2010
John Rae is 1st Vice President of the Alliance for Equality of Blind Canadians, and a member of CCD’s National Council. The following are notes
for a presentation at ARCH Disability Law Centre’s 30th Anniversary Symposium, Toronto, December 13, 2010.
Pursuing civic engagement in a democracy can take many forms, from organizing our own groups, writing letters to the appropriate officials or
the editor of one’s local newspaper, monitoring and making presentations to
Parliamentary committees, filing legal challenges, pickets and demonstrations, to today’s increasing emphasis on participating in the electoral process by voting, as campaign workers or even as candidates hoping to get elected to office.
In the early to mid 1970s, long before the forward looking motto of the 1981 International Year of the Disabled Person, “Full participation and Equality”
became prominent throughout our community, the focus was on organizing our own groups. We observed the gains being made by the civil rights and women’s movements in the United States, and decided it was time to organize our own groups to provide persons with disabilities with our own vehicles for self expression and collective action.
This development was partly a reaction against what Jim Derksen, former Chair of the Council of Canadians With Disabilities often calls the
“rehabilitation industry,” like CNIB, the Canadian Rehabilitation Council for the Disabled and others. Persons with disabilities too often find
ourselves surrounded by a bevy of professionals – doctors, social workers, counsellors, therapists and researchers – who surround us, sometimes acting
a bit like a flock of vulchers, ready to decide what’s best for us and what we need, study us, diagnose us, overly medicalize us, speak for us, but too
rarely employ us or let us decide what’s “really” best for us and to have input into or direct what they say and do.
The 70s were the right time to begin self organizing, and our organizations gave many of us our first chance to participate in work that directly
affected our lives, and many of us who jumped in develop skills in research, policy development, speaking and personal confidence that have stood us in good sted throughout the rest of our lives. That is why, whenever anyone asks me what is the greatest legacy that our movement has left, many are
surprised when I respond that, in my view, it is the personal development in individuals who have participated directly in this important work.
In those old days, those unrepresentative agencies provided services and also assumed the role as our spokespersons, though they had never asked for nor been given a mandate or right to play that role. Even today, this point remains a sore spot and source of some discord within parts of the disabled community as increasingly we insist in being in the forefront, determining our own needs and destiny, and speaking for ourselves, as is the right of citizenship in any democracy.
The New Paradigm of Rights Holders”
Robin East, President of the Alliance for Equality of Blind Canadians has developed a new phrase, “rights holders,” to distinguish us and our
organizations from all the other groups that government and other decision makers love to lump together under the umbrella term, “stakeholders.” We are tired of having a stake driven into our wants and desires.
While it may be true that many groups have a “stake” in the outcome of a decision or piece of legislation, we who live our lives every day with our
own disability know best what we need, and must be accorded a preeminent role in determining the content of every piece of legislation and policy
that affect our lives.
The ODSP Action Coalition is a true partnership between recipients and service providers. This organization that believes firmly in involving
consumers at every level and in all of its work. Each Committee, including its Steering Committee has two co Chairs, one of whom is an ODSP recipient.
The views of consumers are valued, and are encouraged to get involved and participate actively in all of its work.
What Does Our History Tell Us?
If we look at our history over the past 40 years – and yes, we do have a history, a history that needs to be better documented – it shows very
clearly that most of the major advances we have seen did not come about through the magnanimity of Canadian society, though it talks a good line about such topics as human rights and the inclusion of persons with disabilities. Rather, most of the progress we have achieved has resulted
from hard work, struggle and the occasional threat.
A primary case in point was gaining coverage for persons with disabilities under Canada’s Charter of Rights and Freedoms. Persons with disabilities
were the very last group to be included, and that only happened at the last minute.
After months of presenting briefs, attending meetings, and monitoring the Committee that was deliberating over what became Canada’s new Constitution,
the disabled community had become extremely frustrated, as we knew time was running out on this process. One weekend, a rumour began to spread around Ottawa that bus loads of persons with disabilities were preparing to descend on Parliament Hill – picture it, persons in wheelchairs, scooters, canes and dogs and our allies -, and some even say I was responsible for circulating that rumour … Later that week, Jean Cretien rose in the Committee and accepted the amendment that added persons with disabilities to the list of groups now covered by the Charter of Rights and Freedoms.
How many persons would have made the trek onto Ottawa”? We will never know, but I can tell you that discussions were underway to organize such a
demonstration, one I am glad we did not have to do.
Today, it is said that demonstrations are an outdated method of civic engagement, but I am not so sure. What I do know is few groups are using
that tactic these days, and reaching today’s group of insulated elected officials has become more difficult than ever before in Canadian history.
During my many years in advocacy, I have learned many things, but two things stand out more than all the others, you must do your homework and must never threaten to do anything you aren’t prepared to do.
Working Together Can Work!
After 35 years in this work, you can understand I have become more than a little cynical when it comes to the outcomes from our work. However, in
recent memory, there is one example that shows collective efforts can succeed.
When the Ontario government introduced its so called Poverty Reduction strategy, community groups worked together, appeared before the Standing
Committee on Social Policy singing the same tune, and succeeded in getting about half of our proposed amendments adopted. I just wish we had done as well with the STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY which deliberated on Bill 231, the Election Statute Law Amendment Act, 2010.
Access to Elections:
Casting one’s vote in an election is said by many to be the most important act a citizen performs in any democracy. When it comes to elections, the
Alliance for Equality of Blind Canadians has been actively involved in pressing for in creased access to the electoral process for many years,
particularly at the federal level. Progress has been painfully slow, but finally Elections Canada tested accessible voting machines during the
November 29, 2010 bi election in the constituency of Winnipeg North.
Our goal focuses primarily on achieving our desired outcome and much less on methodology. Electors who are blind demand the opportunity to vote
independently and in secret like all other electors, and to be able to independently verify how we cast our vote, something sighted electors take
for granted. I was very excited that, for the first time in my life, during the most recent municipal election in Toronto, I used a fully accessible
voting machine that enabled me to do exactly that. It was a great day for me!
The Hughes Case
Rev. Peter Hughes, has had his own range of access problems in attempting to vote. On March 17, 2008, Rev. Peter Hughes set out with his
walker to vote in a federal by-election at St. Basil’s Church, a beautiful, old building in downtown Toronto. It has three entrances.
At the front door was “a handicap” ramp, but Entrance #1 was locked. A cryptic, yellow Elections Canada sign pointed toward entrance #3. At
entrance #3, when he opened the door, he was startled to find a flight of stairs leading downward. It was clearly not an accessible entrance.
A person who appeared to be an EC official told him he could either come down the stairs or walk around the building (to entrance #2. After
considering his options, Mr. Hughes decided to go down the stairs on the seat of his pants, which he found to be a risky and humiliating experience.
They then put the walker back together and he walked down the hallway to the election polling stations in the basement hall, where he found the tables
were placed too close together, blocking his path. EC officials had to re-arrange the tables, so Mr. Hughes could eventually mark his ballot.
Mr. Hughes was persuaded by Elections Canada officials to exit out a back entrance. Once again, he was confronted with obstacles such as heavy doors
and a very narrow steep and icy ramp that he could not use without assistance.
His departure, however, was no easier. EC officials offered to help him leave through the back way, entrance #2, adjacent to the parking lot. Mr.
Hughes had to walk up a “steep, narrow ramp,” which was only “marginally possible” for use with his walker. The two doors leading out to the parking
lot were heavy, steel doors. Mr. Hughes’ walker had to be folded in order to get it through. Outside the doors, he confronted snow on the ground which
hadn’t been sufficiently cleared. It was barely wide enough for his walker’s wheels, and certainly not wide enough for a person using a wheelchair. He
described the entrance at the back as a “freight/emergency entrance”. In his view, it was demeaning and not dignified, and remarked that it doesn’t
affirm a person as an actual person, but signals they should be handled as freight.
On June 5, 2008, Mr. Hughes filed a complaint with the Canadian Human Rights Commission (CHRC) against Elections Canada, and approached CCD which obtained standing as an interested party before the Tribunal. CCD retained
ARCH Disability Law Centre to prepare written and oral arguments on his behalf.
In October 2008, a federal election was held, and Mr. Hughes received a voter information card, complete with a universal access symbol, advising
him to cast his vote again at St. Basil’s Church. Hoping that the access issues had been resolved, Mr. Hughes went off to cast his vote only to
discover the access issues had not been resolved.
In December 2008, Mr. Hughes’s complaints regarding both the By-election and general election were referred to a tribunal. A hearing took place in
October 2009. The Mr. Matthew D. Garfield’s decision ruled that the Complainant had substantiated his complaints and that Elections Canada had
engaged in a discriminatory practice contrary to the Canadian Human Rights Act, and sets out a 12 point order which requires Elections Canada to
undertake a number of activities to avoid similar complaints, which include:
- . Paying $10,000 to Mr. Hughes for the pain and suffering he experienced,
- Ceasing from the practice of situating polling stations in locations that do not provide barrier-free access, subject to the standard of bona fide
justification and the duty to accommodate,
- . Conducting a review of policies and guidelines dealing with accessibility developed by Elections Canada,
. Including a requirement in lease agreements that polling locations provide level access and are barrier-free,
- . Reviewing, revising and updating training material and programs with respect to accessibility,
. Developing a process for dealing with, and responding to, written and verbal complaints concerning access, and
. Providing regular progress reports to the Tribunal on the activities it
ordered to rectify the complaints.
- Consulting with voters with disabilities regarding access issues, including CCD and ARCH, which have begun.
The actions required by the Tribunal are being monitored by the Canadian Human Rights Commission.
Court Challenges Program:
The Court Challenges Program (CCP) was founded in 1978 to provide funding for official minority language cases based on sections 93 and 133 of the
Constitution Act, 1867.
In 1985, section 15 of the new Charter of Rights and Freedoms came into effect, providing Canada’s first constitutional guarantee of equality, and
the Program’s mandate was expanded to include challenges to federal laws,
policies or practices based on sections 15 (equality), 27 (multiculturalism)
or 28 (sex equality) of the Charter. Also, the federal government entered into a five-year contribution agreement with the Canadian Council on Social
Development, so that the Program could be administered in an arm’s length manner from the Government of Canada.
In September 2006, the Government of Canada summarily cancelled this important Program, despite a 2003 independent evaluation that endorsed the
Program’s purpose and operation, and despite the renewal of the contribution agreement with Heritage Canada until March 2009.
Cancellation of this Program is a major blow to all equality seekers, as rights without the means to enforce these rights are no rights at all!
Effective enforcement of legal rights must be for everyone, all groups and not just the wealthy.
During its history, the Court Challenges Program supported challenges and interventions of national importance, giving rise to the rich body of
equality jurisprudence in Canada-a body of jurisprudence that is internationally respected and emulated. Some examples of some cases include:
amending employment insurance benefits rules that discriminate against parents of children with disabilities; expanding the common law definition
of marriage to include same-sex unions; challenging VIA Rail’s decision to purchase used rail cars that were not accessible; challenging the sex
discrimination in the Indian Act’s status entitlements; and supporting Donna Jodhan in her landmark victory against the Government of Canada over website and information access.
Landmark Charter Access to Information Case:
And before I close, I must say something about the recent victory in the landmark Charter case of Donna Jodhan and the Canadian Human Rights
Commission v. The Government of Canada regarding website access. On November 29. 2010, Federal court Justice Michael Kelen who ruled:
1. This application for judicial review is allowed and the applicant is entitled to a
declaration under section 18.1 of the Federal Courts Act that she has been denied equal access to, and benefit from, government information and services provided online to the public on the Internet, and that this constitutes discrimination against
her on the basis of her physical disability, namely that she is blind.
Accordingly, she has not received the equal benefit of the law without discrimination based on her
physical disability and that this is a violation of section 15(1) of the Charter;
2. It is also declared that the applicant’s inability to access online certain departmental websites is representative of a system wide failure by many of the 146 government departments and agencies to make their websites accessible. The failure of
the government to monitor and ensure compliance with the government’s 2001 accessibility standards is an infringement of section 15(1) of the Charter
since it discriminates against the applicant and other visually impaired persons;
3. It is also declared that the government has a constitutional obligation to bring itself into compliance with the Charter within a reasonable time period, such as 15 months;
4. This Court will retain jurisdiction over the implementation of this declaration and the Court will resume its proceedings on the application of either party if necessary to ensure the effect of this declaration is properly implemented; and
5. The applicant is a public interest litigant and is entitled to her legal costs including disbursements in the fixed amount of $150,000.
The AEBC is delighted that the court will remain involved, as the Tribunal did in Rev. Hughes’s case, and hope this will ensure the Government of
Canada implements Justice Kelen’s order.
The AEBC also hopes this landmark decision will send a clear signal to all other organizations and developers of website and online content that they
must make it a priority to provide their information in an accessible manner.
Donna’s case was made possible because it was launched before the current government cancelled the Court Challenges Program, a move which makes it much tougher to go to court to uphold and expand rights under the Charter. This Program must be reinstated!
Bringing Us Into the Mainstream:
Our task of civic engagement would be greatly advanced if more of us were employed in government offices, corporate boardrooms , media newsrooms,
political offices and even legal clinics. When I was an employee of the Ontario Government, the workplace accommodations I needed, technical
equipment and personal readers, were covered from a central fund, and my friend, the late Carol McGregor so wished a similar fund would have been
available to her employer while she worked at Injured Workers Consultants, but it wasn’t, and she and her employer struggled. When the Attorney General announced some new funding for clinics, ARCH proposed that the Ontario Government should create a similar centralized fund to assist transfer
payment organizations, including community legal clinics, to more readily and effectively fulfil their legal obligation of accommodating their
employees short of undue hardship. But, sad to say, this proposal did not even make the final list submitted to the government from the clinics.
Time For All Governments to Start “Walking the Talk”
ON FULL ACCESS:
When you consider only four instances, Via Rail, David Lepofsky’s two TTC cases, and Donna Jodhan’s recent victory, governments are wasting huge sums of taxpayers dollars fighting against increasing accessibility that will help bring Canadians with
disabilities into the mainstream, something they all claim to support. It’s time they stopped wasting taxpayers money, and work more collaboratively
with rights holder organizations and our allies to make Canada a real leader in providing access and inclusion. It is time they showed some real
commitment and began to walk the walk!