Canada’s Constitutional Guarantee of Equality Rights to People with Disabilities is 40 Years Old Today!

April 17, 2022

SUMMARY

Forty years ago today, the Canadian Charter of Rights and Freedoms became part of Canada’s Constitution. Section 15 of the Charter of Rights guarantees equality rights, including freedom from discrimination because of a disability. Here is what section 15 says in full:

Equality Rights

(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

There was a three-year delay before section 15 went into effect. That was done so that governments across Canada could have the time they said they needed to bring themselves into compliance with the new constitutional duties they had to fulfil under section 15.

People with disabilities had to fight to win this new constitutional right. When the Federal Government of Prime Minister Pierre Trudeau introduced the Charter of Rights into Parliament for debate in October 1980, it included section 15, the equality rights provision. However, that provision did not include equality rights for people with disabilities.

Without the benefit of the internet or social media, which were decades away, we had to campaign under difficult circumstances. Yet, we won. In fact, equality for people with disabilities is the only new right that was added to the Charter of Rights during the famous patriation debates in 1980 to 1982.

The guarantee of equality to people with disabilities in the Charter of Rights is a key driving force that underpinned the campaign for detailed accessibility laws, like the Accessibility for Ontarians with Disabilities Act, the Accessible Canada Act, the Accessibility for Manitobans Act, the Accessible British Columbia Act, Nova Scotia’s Accessibility Act, and the Accessibility Act of Newfound and Labrador.

Would you like to learn more about this important history in Canada’s disability rights movement? Below we set out a guest column by AODA Alliance Chair David Lepofsky that was published in the Toronto Star 20 years ago today, on the 20th anniversary of the enactment of the Charter of Rights. That column ran three years before the Accessibility for Ontarians with Disabilities Act was enacted in Ontario to help make the Charter’s guarantee of equality to people with disabilities become a reality in the lives of Ontarians with disabilities.

Here are other great resources to learn more:

Transcript of the three disability organizations’ presentations in the fall of 1980 to the Joint Committee calling for the Charter disability amendment.

Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee on behalf of the Canadian National Institute for the Blind. He is now Chair of the AODA Alliance.
Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.
Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee – a decision the Federal Government reversed forty years ago today.
Transcript of the vote on January 28, 1981 to amend the proposed Charter of Rights to include equality rights for people with disabilities by the Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada.

Sadly, four decades later, the rights guaranteed to people with disabilities in the Charter are too often not a being respected. As but one example, it was 1,179 days ago that the Ford Government received the blistering final report of the Independent Review of the AODA’s implementation by former Lieutenant Governor David Onley. There are only 46 days until Ontarians vote for the next Ontario Legislature. The Ford Government has still brought forward no plan to effectively implement the Onley Report.

Toronto Star Wednesday, April 17, 2002

How disabled won place in Charter

David Lepofsky

THE 20TH ANNIVERSARY of the Charter of Rights, April 17, 2002, has special meaning for me. I was privileged to play a small part in the battle to get equality for persons with disabilities added to the Charter, the only right explicitly added to it in the parliamentary debates.

When the Charter debate began, I was finishing my law studies, cramming for bar exams. Two years before, I had lost my minimal, dwindling eyesight.

The 1980 draft Charter originally included equality rights but deliberately omitted persons with disabilities. Many voices contributed to our victory in getting the Charter amended to include disability equality. Mine was but one of them. We did not expect to win. But we had to try.

Then-prime minister Pierre Trudeau, to whom we remain indebted, was pushing the Charter so hard that I never thought he would stop to listen to us. The media paid us scant attention. They were preoccupied with Trudeau’s battle against those premiers opposing the Charter.

Meanwhile, Parliament was considering the Charter at warp speed.

Disability activists were inexperienced at national lobbying. We had no faxes for instant communication, for example. I, along with Ontario’s disability organizations, was preoccupied with lobbying the provincial Conservative government to include disability in Ontario’s Human Rights Code. There was no time to co-ordinate a national strategy.

Individuals and organizations had to do what they could on their own.

When I heard that the Charter excluded disability, I asked the Canadian (sic. National) Institute for the Blind to appoint me as its “constitutional spokesman,” whatever that was. The CNIB agreed. I immediately launched our campaign to the media. But the media ignored us. Ironically, one TV station complained that there was nothing “visual” in our story.

I sent a brief to Parliament, but never dreamed CNIB would be invited to testify. Hearings were on tight time lines and many groups wanted to make presentations. Then came an unexpected phone call. Parliament invited CNIB to appear before it within 36 hours. Hearings were televised nationally. Shaking, I pleaded for a week to prepare. Parliament’s response was, take it or leave it. Thankfully, my next bar exam was still a week away. I had 36 hours to become an equality rights expert.

I contacted a computerized legal service and pleaded with officials to search Canadian legislation for “blind,” “deaf,” “disabled,” etc. They read search results over the phone. It was a moment I’ll never forget. In the background I heard thousands outside City Hall, singing “Imagine” in remembrance of Beatle John Lennon, murdered that week.

Arguments made by various organizations before the parliamentary committee and elsewhere in 1980 were simple: If the Charter is to guarantee equal rights, it must include equality for all, including persons with disabilities, not just equality for some.

Canadians with disabilities face unfair barriers when seeking employment, education, and opportunities that others take for granted. We needed and need equality.

Canada planned to pass the Charter in 1981, which happened to be the International Year of the Disabled. Canada co-sponsored the U.N.’s declaration. How could Canada deny us at such a time? After the public hearings, the federal government wouldn’t budge, despite enormous pressure.

At home, I watched live on television the government’s presentation before the parliamentary committee rejecting our proposed disability amendment. I ran to the phone, called a newspaper minutes before its deadline, and denounced the government for being wrong and unfair. My words ran the next day on page 2, beside the government’s speech.

Trudeau wanted to win public support for the Charter over the heads of the holdout premiers. Advocates kept up the pressure.

Then word came from a justice minister named Jean ChrΘtien that the government would support our disability amendment. The federal Tories and NDP agreed.

The disability amendment was an enormous milestone on our road to equality. The media hardly noticed. The Charter gave Canadians with disabilities a potent tool to urge governments to remove barriers we face, to take court action if it was refused, and to show us that we are entitled to fully participate in Canadian life.

Twenty years later, some governments have acted. The Supreme Court has enunciated visionary legal principles about disability equality. Law journals contain disability equality cases, some better than others.

Yet we still face many barriers.

Litigating Charter claims, one barrier at a time, costs too much and takes too long. That’s why many worked so hard over the past seven years to get Ontario’s Conservatives to fulfill their promises to enact and implement an effective Ontarians with Disabilities Act.

Our campaign for equality continues. We now know much more about how to wage it and are more determined than ever.

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David Lepofsky is a Toronto lawyer and activist for reforms to protect the rights of persons with disabilities.