Remembering a Major Setback on the Road to Equality for People with Disabilities Forty Years Ago Today – But One that Was Thankfully Reversed a Mere 16 Days Later!

Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: aodafeedback@gmail.com Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

Remembering a Major Setback on the Road to Equality for People with Disabilities Forty Years Ago Today – But One that Was Thankfully Reversed a Mere 16 Days Later!

January 13, 2021

            SUMMARY

Forty years ago today, people with disabilities in Canada suffered a major defeat in the campaign for full inclusion and full participation in Canadian society. However, it turned out to only be a very temporary defeat, one which only lasted 16 days. Yet forty years ago today, we did not know that this defeat would be so short-lived.

Four decades ago, people with disabilities were waging a battle to get equality rights for people with disabilities entrenched in the new Canadian Charter of Rights and Freedoms that Parliament was then considering for inclusion in Canada’s Constitution. In October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament that would bring Canada’s Constitution home from England, and add a new Charter of Rights to it. The proposed Charter of Rights was to include an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, it would have been impossible for courts to add disability protection to section 15 by judicial interpretation.

Several organizations and individuals came forward in the 1980 fall to call for the Charter of Rights to be amended, before Parliament passed it, to add equality for people with disabilities to section 15. During public hearings in Parliament on Canada’s Constitution in the 1980 fall three disability organizations got the chance to make presentations. You can read their presentations in the December 7, 2020 AODA Alliance Update. Those organizations were the Canadian Association for the Mentally Retarded (later re-named the Canadian Association for Community Living), the Coalition of Provincial Organizations of the Handicapped (COPOH, later renamed the Council of Canadians with Disabilities (CCD)), and the Canadian National Institute for the Blind (CNIB). CNIB’s lead presenter was David Lepofsky, then a law student, and now chair of the AODA Alliance.

Despite those presentations, forty years ago today, the Federal Government announced that it would not add disability equality to the Charter. At the January 12, 1981 meeting of the Joint Committee of the Senate and the House of Commons on the Constitution of Canada, Canada’s Justice Minister, Jean Chretien gave the Government’s reasons for refusing to do so. He was then grilled on this issue at that meeting by an Opposition MP. Below we set out those exchanges, which are amazing to re-read 40 years later.

Justice Minister Chretien, who later went on to be Canada’s Prime Minister, announced at that meeting that under amended wording of section 15 that the Government was proposing, a court could later decide to add equality for people with disabilities to the Charter. However, the Government was not prepared to include wording that ensured that section 15 guaranteed equality to people with disabilities.

This was a huge setback for people with disabilities. However, advocacy from the disability community continued! For example, in the next day’s Globe and Mail newspaper was an article in which David Lepofsky, then speaking for CNIB as a volunteer, showed why Justice Minister Chretien’s refusal to include disability in section 15 was wrong. That article from the January 29, 1981 Globe and Mail is also set out below.

As a result of advocacy efforts from the disability community over the next days, the Federal Government changed its mind. On January 28, 1981, the Joint Committee voted to amend section 15 of the proposed Charter of Rights to include equality without discrimination because of mental or physical disability. The 40 year anniversary of that historic vote is coming up in 16 days.

Our eventual victory in that campaign was the product of efforts by many people. To learn more about this history, which underpins all our disability accessibility advocacy to this day, check out a captioned video of a talk by David Lepofsky, where he recounts the history of the successful campaign in 1980-81 by diverse disability organizations to get the disability amendment added to the Charter of Rights. A captioned video of the December 12, 1980 presentation to the Joint Committee of the Senate and House of Commons by a much younger David Lepofsky, then a law student, on behalf of the CNIB is also available online.

            MORE DETAILS

Hansard of the Parliament of Canada – Joint Committee of the Senate and the House of Commons on the Constitution of Canada

January 12, 1981

Excerpt from the opening remarks by The Honourable Jean Chretien, Minister of Justice and Attorney General of Canada.

(Note: The Minister of Justice gave the Committee a speech in which he listed various changes that the Federal Government was prepared to accept to the proposed Charter of Rights.)

Equality rights:

There has been much discussion of the non-discrimination provisions of the Charter as found in Section 15. I want to deal with this in some detail. First, I want to state that I agree with the proposal made by the Advisory Council on the Status of Women and the National Association of Women and the Law that the section be entitled equality rights so as to stress the positive nature of this important part of the Charter of Rights.

I want to take this opportunity to congratulate all of the witnesses who testified on this section. I want specifically to compliment the Advisory Council on the Status of Women for a particularly fine brief as well as for an impressive presentation before you. The work of the Council has greatly influenced the government as have the presentations of the many witnesses who have spoken on this subject on behalf of women’s groups, the handicapped, and others.

A provision on “equality rights” must demonstrate that there is a positive principle of equality in the general sense and, in addition, a right to laws which assure equal protection and equal benefits without discrimination. To ensure the foregoing and that equality relates to the substance as well as the administration of the law, I would be prepared to accept an amendment to Section 15(1) so that it would read:

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 or age.

I know that many witnesses have recommended either that the grounds for non-discrimination be widened to include handicapped persons or others or that there be no specific enumeration and that more discretion be left in the hands of the courts. The government has studied these representations with great care.

The position of the government is that certain grounds of discrimination have long been recognized as prohibited. Race, national or ethnic origin, colour, religion and sex are all found in the Canadian Bill of Rights and are capable of more ready definition than others.

I want to make clear that the listing of specific grounds where discrimination is most prohibited does not mean that there are not other grounds where discrimination is prohibited. Indeed as society evolves, values change and new grounds of discrimination become apparent. These should be left to be protected by ordinary human rights legislation where they can be defined, the qualifications spelled out and the measures for protective action specified by legislatures.

For example, it was only four years ago that federal human rights legislation specifically provided protection for the handicapped in the area of employment.

Recently the Special Parliamentary Task Force on the Handicapped chaired by David Smith has recommended changes and improvements in the Human Rights Act with respect to the handicapped. The government will be acting on some of the recommendations of the Task Force. The government is also proposing to act on some of the recommendations made by the Canadian Human Rights Commission in this area and will propose amendments to the Human Rights Act.

But if legislatures do not act, there should be room for the courts to move in. Therefore, the amendment which I mentioned does not list certain grounds of discrimination to the exclusion of all others. Rather, it is open-ended and meets the recommendations made by many witnesses before your Committee. Because of the difficulty of identifying legitimate new grounds of discrimination in a rapidly evolving area of the law I prefer to be open-ended rather adding some new categories with the risk of excluding others.

Section 15(2) of the draft Resolution permits affirmative action programs to improve the conditions of disadvantaged persons or groups. I am proposing an amendment to read:

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 or age.

This section permits programs designed to achieve equality which might otherwise be precluded by the rules against discrimination in subsection 15(1).

The amendment will not preclude other programs to assist the disadvantaged—be it on grounds such as handicap, marital status or other bases of discrimination identified by the courts. It is simply an assurance that an affirmative action program based on a recognized ground of non-discrimination will not be struck down only because it authorizes reverse discrimination for the purpose of achieving equality.

Note: Later in this Committee meeting was this exchange from an opposition NDP member and the Minister of Justice:

Mr. Nystrom: I would like to refer now to a couple of things in the Charter of Rights itself.

You have said on page 7, for example, of your comments to the Committee tonight, and I quote:

The work of the Council

and this is of course the Advisory Council on the Status of Women,

The work of the council has greatly influenced the government as have the presentations of the many witnesses who have spoken on this subject on behalf of women’s groups, the handicapped, and others.

The government has been, as you say, greatly influenced by the groups that have appeared and you have moved some considerable distance in terms of women’s rights, and I think the suggested amendment is very interesting, one we will take a very serious look at. You have moved some distance in some other areas.

We have also had handicapped groups before the Committee and you said that the groups that have appeared have greatly influenced the government, and I would like to ask you why you do not include in the Charter of Rights any reference to the handicapped, to the physically disabled, to the mentally disabled in our country.

We have had some groups before us who came and made some pretty good arguments, and you said you have been greatly influenced. I would like to know where the influence is.

Mr. Chretien: The position is that the list enumerated there is not exclusive and any other rights on discrimination the court could intervene.

The problem is we say that these rights have to mature in the Canadian society. For example, we will still have a Human Rights Commission and we will still pass legislation on different groups to make sure that their rights are protected, but they have to mature and this list that I have enumerated, excluding the others, we have opened up that clause so that other types of discrimination can be taken care of by the courts, if Parliament and legislative assemblies do not intervene.

But to start to enumerate more in that category where their rights are starting to be protected by legislation and so on, and if there is discrimination against handicapped and so on, we say that the court can intervene even if we do not want to enumerate them at this time because many of those rights are difficult to define. It is in the process of maturing, that is why it is not there.

But before, the clause was limiting the element of discrimination. Now it is not limiting them; other types of discrimination can be covered by the courts too.

Mr. Nystrom: I remind you, Mr. Minister, that this year is the International Year of the Handicapped, the year 1981, or the International Year of the Disabled, rather, and I would like to know more of what you mean by rights have to mature. Why are the handicapped singled out? Why are the disabled singled out?

It seems to me that we should be enshrining some rights for them in our constitution. If you are not sure what kind of rights they are, perhaps the wording does not have to be as tight as in some other cases, but surely to goodness there can be some reference that we cannot discriminate against the handicapped.

Mr. Chretien: I referred in my speech that we have enacted some legislation in relation to the handicapped in the last four years. There will be some more. We still have the Human Rights Commission working on that and we have to prepare some amendments.

But we have opened up the clause so that the clause is not limiting the type of discrimination to the enumeration of discrimination as mentioned.

Just to give you an example. In the Charter of Rights as presented by Mr. Diefenbaker, the word “age” was not there at that time, but over the years this has gained maturity and it is finding its place there, and the first enumeration we had was limiting the type of discrimination. We have opened up to other types of discrimination that can be covered by the courts if the Parliament or assemblies do not take care of the problem.

So I do think that it is a very important amendment but we do not want to have the problem of definition at this time because it was creating too many difficulties.

Mr. Nystrom: In your personal opinion, Mr. Minister, has the right to enshrine the rights of the handicapped matured by this time?

Mr. Chretien: If there is positive discrimination against handicapped and nobody is acting, in my reading of that section, the courts could intervene.

Mr. Nystrom: Why not enshrine it then if it has matured?

Mr. Chretien: They are, because the clause is open…

The Globe and Mail January 13, 1981

Disabled out in the cold, spokesman at CNIB says

Tuesday, January 13, 1981

The Liberal Government’s refusal to expand equality rights to include the handicapped makes a mockery of Canada’s participation in the international year of the disabled, a spokesman for the Canadian National Institute for the Blind says.

Rather than moving to protect the handicapped, Ottawa has decided to let discriminatory laws remain on the books, said David Lepofsky, a CNIB director who appeared before the parliamentary committee on the constitution last month.

Mr. Lepofsky said Justice Minister Jean Chretien’s remarks in making the announcement “have absolutely no relation to reality. “He’s saying that the term ‘handicapped’ is too vague and that no one will know what it means. That’s absolutely ridiculous – it’s very clear what we’re talking about.” Mr. Lepofsky also criticized Mr. Chretien for suggesting that entrenched protection for the physically and mentally disabled would only duplicate existing human rights legislation. On the contrary, he said, much of the current legislation is concerned only with discrimination in the workplace or in rental agreements.

“Those provincial statutes don’t address themselves to all the other provincial and federal laws which discriminate against the handicapped,” Mr. Lepofsky said.

He cited laws which prohibit blind people from sitting on juries in some provinces, deny minimum wage protection to some handicapped people and forbid some mentally handicapped

couples from marrying.