Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
What Did Disability Advocates Tell Canada’s Parliament 40 Years Ago This Fall to Help Win an Historic Amendment to the Charter of Rights to Protect Equality for People with Disabilities?
December 7, 2020
Let’s take a cool stroll down disability rights advocacy memory lane going back four decades! Today, we make public a real treasure from the history of the ongoing non-partisan campaign for full accessibility, full participation and full inclusion of people with disabilities in Canadian society! These events still resonate to this day.
In this Update, we reach back to the incredibly uphill but ultimately successful battle in the fall of 1980 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, the wording of 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.
A number of organizations and individuals came forward in the fall of 1980 from the disability community 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 fall of 1980 (the first Committee hearings in Canada’s Parliament ever to be televised), only three disability organizations got the chance to make presentations.
This Update gives you the chance for the first time to now read those three presentations all in one place. Below we set out the official transcripts of the presentations that were made by the three disability organizations that were given the opportunity to address the Joint Committee of the Senate and House of Commons that held hearings on the proposed patriation of Canada’s Constitution.
- On November 21, 1980, the Joint Committee heard from the Canadian Association for the Mentally Retarded. That organization was later re-named the Canadian Association for Community Living. More recently it has adopted the Name Inclusion Canada.
- On November 25, 1980, the Joint Committee heard from the Coalition of Provincial Organizations of the Handicapped (COPOH). That organization is now known as the Council of Canadians with Disabilities (CCD).
- On December 12, 1980, 40 years ago this upcoming Saturday, the Joint Committee heard from the Canadian National Institute for the Blind (CNIB). Its lead presenter was David Lepofsky, then a law student, and now chair of the AODA Alliance.
Despite these presentations, the Federal Government initially resisted adding disability equality to the Charter. However, our community persisted. Eventually, the disability amendment was unanimously added to the Charter before Parliament passed it in 1981. The only right to be added to the proposed Charter of Rights during all those weeks of proceedings in Parliament was equality for people with disabilities.
There is much more to this story. The winning of the disability amendment was due to the efforts of many. If you want 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.
“Our tenacious battle for accessibility and inclusion for people with disabilities has come a long way over the forty years since then, on a journey we certainly could not have imagined in 1980,” Said AODA Alliance chair David Lepofsky. “In the fall of 1980, we had little hope of success, but combined efforts from disability advocates did succeed. Since then, we have continued to face many similarly uphill battles, with it each time appearing that we have little chance of succeeding, but we keep up our unstoppable efforts and we keep blazing forward.”
We welcome your feedback on this trip down memory lane, or on anything else to do with the non-partisan campaign for equality for people with disabilities. Write us at firstname.lastname@example.org
Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada RESPECTING The document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980
Senator Harry Hays, P.C.
Serge Joyal, M.P.
1. November 21, 1980
The Joint Chairman (Mr. Joyal): …
It is my pleasure this morning to introduce [Translation] Mr. Paul Mercure, President of the Canadian Association for the Mentally Retarded, and Mr. David Vickers, Vice-President.
I understand that the Association has submitted a brief to the clerk of the committee and that it has been distributed, I also understand that you have a short presentation to make before answering the members’ questions.
I see that you have another colleague with you at the table and I would ask the President, Mr. Mercure, to introduce him.
Mr. Paul Mercure (President of the Canadian Association for the Mentally Retarded): I would first like to thank the members of the joint committee for having given the representatives of the Canadian Association for the Mentally Retarded a few minutes of their precious time, despite the deadlines they are facing.
Our delegation includes, on my left, Mr. Dave Vickers, Vice-President of our association and a former deputy minister of Justice in British Columbia, whose young daughter is mentally retarded, and, on my right, Mr. David Lincoln, President of the People First group, which is based in Fort Erie, Ontario. This is a group of mentally retarded adults who are trying to get along on their own. Mr. Harvey Endicott, Co-ordinator of the Association’s legal services and resources, is also with us.
The purpose of the Canadian Association for the Mentally Retarded is to defend the rights and promote the interests of some 500,000 mentally handicapped Canadians.
It is a voluntary movement that includes provincial associations and some 40,000 members belonging to almost 400 local associations. Our brief should thus be corrected. We have 40,000 members throughout Canada.
The Association’s main goal is to ensure that the rights of physically and mentally handicapped persons are respected and we have joined forces with other groups representing the handicapped.
Our Association is deeply convinced that all mentally handicapped people should live in society. outside of institutions which tend to alienate them. The integration process has begin throughout Canada and should be pursued on a long-term basis, Because more and more handicapped people are living in society, their rights must be protected.
Thanks to the efforts of our movement, a number of provincial and federal laws have addressed these questions. Our remarks this morning are based on decisions made at our general meeting, held in Toronto last June, and on previous general meetings which took a stand on the rights of the handicapped. At the June meeting, the Association was asked to promote the enshrinement of these rights in the new Canadian constitution.
This resulted in a special brief being presented to the special committee of the House of Commons on the handicapped and the disabled.
I would like to take this opportunity to say that I am happy with what we were able to accomplish with respect to that committee. Most of what we want to say this morning is contained in the preamble to a document published in October by the Special Committee on the Handicapped and the Disabled.
I would like to quote the third paragraph of the preamble, which reads as follows:
If Parliament decides to enshrine human rights in the patriated constitution. the committee feels that complete and equal protection should be extended to persons suffering from physical and mental handicaps.
We are asking that the rights of handicapped persons be protected in the new constitution.
The Association has not taken up position on how to patriate the constitution. We, of course, have our personal opinions, but we would rather the matter be dealt with by persons more qualified than us.
We want the patriated constitution to deal with the rights of all Canadians and give added protection to handicapped persons. who need it to be able to exercise their rights.
We are not asking for special rights, any more than we are in favour of special or segregated services, which we would like to see replaced. throughout Canada. by integrated services.
What we are asking for is a place in society and the legal protection that handicapped people need to be able to exercise the same rights as other Canadians.
Before asking Mr. Vickers to give a more detailed account of our demands, I would like Mr. David Lincoln, who, as I said, is President of a group of mentally retarded people based in Fort Erie, to provide specific examples of situations that the group members have to deal with every day.
The Joint Chairman (Mr. Joyal): Mr. Lincoln.
Mr. David Lincoln (President, People First): First of all. I would like to say that People. First is a self-advocacy group of mentally retarded persons helping each other.
l have a few examples here, like needing more funding for shelter workshops, more staff and better pay for handicapped people.
One incident that comes to mind is from Carleton Place where clients were getting 2 cents an hour for the work they were doing. We feel that we are accomplishing a lot by working and human rights should cover minimum wage for all handicapped, or humans, supposedly.
Another one is there should be more low-rental accommodation for handicapped persons and if they move into a place they should not be discriminated against because they are retarded. Most people would rather turn them down because they are mentally retarded, and they figure it would be a low cut in rent, but it is not happening.
The best part of all, we are Canadian citizens; we feel we should be a part of the Canadian citizens instead of feeling second class.
The reason we are called People First is it is very important for our rights to such opportunities to be protected in the Canadian constitution. Please do not ignore us. We are people who are Canadian citizens first and handicapped second.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Lincoln.
Mr. David Vickers (Vice-President, Canadian Association for the Mentally Retarded): Mr. Chairman and Members of the Committee, we are here this morning to discuss with you a question of values. We are speaking of the value that will be placed upon the lives of our sons and daughters.
We are speaking to you about the value that will be placed upon the lives of thousands of Canadian citizens; these Canadian citizens living with a handicap, whether real or perceived.
Our plea to you is not a plea for special rights. Our plea as advocates of people with a handicap is that they too will be afforded the full opportunity that attaches to their Canadian citizenship: in short, a plea that they will not be forgotten in
the new Bill of Rights so that they may become, as David has just said, Canadians first and handicapped second.
We ask you to pause for a moment, if you will, to consider the needs of an average Canadian citizen. Think of your own needs and how they have been met throughout your life. Canadians who are handicapped are no different in that regard than you or I. To achieve the limits of their potential they require, first of all, the ability to live, and in particular adequate health care.
Second, they require an appropriate education in the least restrictive alternative.
Third, they need appropriate vocational training and thereafter appropriate vocational opportunities.
Fourth, they need appropriate residential accomodation, again in the least restrictive alternative.
Fifth, they need appropriate recreational and social opportunities.
Antidiscrimination clauses in charters and human rights codes contains statements of conduct that is prohibitive. In addition to such statements of prohibitive conduct, our association favours a statement of positive rights. We say that those values to which we all subscribe as Canadians can be and ought to be stated as basic conditions of social, economic and cultural rights in Canada.
Unfortunately time has not allowed us to conduct an exhaustive study in that regard. In the preparation of our brief we have strived to return to the basic question, what are those values to which we can subscribe and how can they be entrenched in a charter of rights within the Canadian constitution?
Therefore we had reference to the International Covenants Board on Human Rights. These United Nations Covenants have been subscribed to by Canada and the provinces.
We are told that the ratification of these convcnants. the appointment of a Canadian representative to the Human Rights Committee and the subsequent ratification of the optional propocol remain today as a shining example of federal-provincial co-operation.
Therefore, since August 19, 1976 when the document came into effect, we have had a set of international values to which we could refer when considering the very issues which are before us today.
The first of these covenants deals with economic, social and cultural rights. the second with civil and political rights. Our list which was taken from these covenants is found at page 2 of our brief.
From the second covenant, Article 6 and the first convenant, Article 12, we have extracted the right to life and the right to health care. The remainder are all taken from the first covenant and include Article 11, the right to adequate food, clothing and housing; Article 10, the right to protection and assistance of the family; Article 13, the right to an appropriate
education; Article 7. the right to an opportunity to work, and just and favourable conditions of work; Article 8, the right to participate in trade unions and Article 9. the right to social security.
It is essential that we take just a moment to say a few words about the right to an appropriate education. Many Canadians who are handicapped are denied this basic right referred to in the International Covenant and subscribed to by Canada and the provinces. It is fundamental to the growth and development of all persons that they receive an appropriate education in the least restrictive environment. It is more than interesting to note that Section 23 of the proposed constitution act 1980 provides and I quote:
the right to have their children receive their primary and secondary school instruction in that minority language if they reside in an area
And so on. Surely, there is a missing link in the logic of this section. There is indeed the need to entrench the right to an appropriate education and thereafter to deal with the equally important question of minority language educational rights. Without the entrenchment of that value, the right to an appropriate education, Canadians who live with a handicap condition are at the outset denied the means of access to many of the benefits of Canadian society.
We recognize that it is an imperfect world. Achieving a consensus on a host of positive rights may be difficult, but nevertheless worthy of the great past which is yours at this moment in our history.
There remains the need for an antidiscrimination clause such as Section 15; however, we wish to convey to your Committee the urgent necessity to add to the specific grounds, and I quote:
“handicapping condition”, whether physical or mental
The year 1981 will be International Year of the Disabled. It would be an appalling commentary on our Canadian values if we failed to entrench in that year, in our new constitution. protection for all Canadians who live with a handicap whether real or perceived. The usual objection raised to inclusion of handicapped as a prohibited ground of discrimination is that such a measure might obstruct programs designed to remedy the effects of the long history of negative discrimination. We believe that the usual exceptions to affirmative action programs can relieve this concern. And you have dealt with that in the subsection to Section 15.
There is a second objection from those who say that in order to benefit from antidiscrimination clauses a person would first have to identify himselfor herselfas handicapped. This objection can be overcome if the terminology used is defined broadly, such as we find in a definition of “handicapped person” which can be found in the US. Rehabilitation Act of 1973. There “handicapped person” is defined as any person who has (a) a physical or mental impairment which substantially limits one or more of such person’s major life activities; (b) has a record of such impairment. or (c) is regarded as having such an impairment.
It is noteworthy that particularly under subsection (c) of this definition the focus is clearly on the act of discrimination rather than on whether the person discriminated against can be fitted into the protected category. That is the essential purpose of the statutory definition.
In summary, Mr, Chairman and members of the Committee, our Association urges this Committee to consider enlarging the statement of positive rights for all Canadians and to consider in particular those economic, social and cultural rights which today form the foundation of our Canadian society.
Finally, we join with many other Canadian organizations and ask that the words “handicapping condition, whether physical or mental”, be added to the list of prohibited grounds ofdiscrimination found in Section 15. Thank you.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Vickers.
The honourable Walter Dinsdale.
Mr. Dinsdale: I should like to welcome you three gentlemen who have so effectively represented the cause of the mentally handicapped community in Canada. I am sure you are aware that we have a Special Parliamentary Committee on the Disabled and the Handicapped that has been in action now for almost six months; on the basis of our investigation, we quite soon came to the conclusion that one of the areas of rather tragic neglect so far as human rights are concerned, was that of the mentally handicapped citizens, including both the mentally ill and the mentally retarded.
We had an opportunity to see the people first in action in some of our hearings, and I think members of the Committee will be quite impressed when I tell you that one of the most effective presentations was done quite spontaneously without the benefit of notes by one of your representatives in Vancouver who tried to define mental retardation and this is Brian I am speaking of: he said, “I am mentally retarded”, and he tapped his forehead, and said “That means that I think a little slowly”, then he paused rather dramatically and said: “I know some politicians who suffer from the same disability”. It is obvious from your presentation here this morning that this is the case.
We were so much concerned that our Special Committee produced an Interim Report, I presume you gentlemen have seen that report. One of the statements was to the effect:
Should it be the will of Parliament to entrench human rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicap.
There has been no protection at all, Mr. Chairman, other titan the United Nations Human Rights Charter to which we have subscribed; but there is no protection in terms of meeting the needs of the mentally handicapped.
Now, having said that. Mr. Chairman, I wonder ifwc could get down to specifics and ask the people who are representing the mentally retarded this morning, if they feel that Section
1—and this has become a big issue during the course of the hearings of this Committee—abrogates the rights that are guaranteed in Section 15 of the bill. I presume the witnesses have the resolution before them. I think this is a fundamental point, because it is quite clear today, Mr. Chairman, that there is discrimination against the handicapped, particularly the mentally handicapped.
It is not an accepted body of thought that the mentally retarded, in particular, should have all the rights under a Human Rights Charter. Are the two in conflict?
Mr. Vickers: Mr. Chairman, my own personal view is that it is giving with one hand and taking away with the other. We have not addressed ourselves specifically to that question. feeling it was our mandate to address the issue of entrenching rights for handicapped people.
But, looking at Section 1, and speaking with my legal hat on for one moment, if I may, it appears to me to be giving with one hand and taking away with the other.
Having read, for example, Mr. Fairweather’s comments before the Committee. I am bound to say I subscribe to what he has had to say about appropriate amendments to that section. I feel it does need some work.
Mr. Dinsdale: Mr. Chairman, do I take it that Mr. Vickers is saying that there is a direct contradiction. He has not quite phrased it that way, but the two nullify one another in effect. is that correct?
Mr. Vickers: Yes, I agree with that. One seems to offset the other.
Mr. Dinsdale: We, in our Interim Report, recommended very strongly that the Charter of Human Rights or the Human Rights Act, in other words, should embrace all the rights that are in the Human Rights Act for the handicapped. Do you think this adequate human rights protection for the people you are representing here this morning? We have a human rights act which was passed in 1977. At that time public opinion was such that the only right that was enshrined in the human rights act—just three years ago, which goes to show how slowly we learn—was the right to employment.
There were numerous arguments put forward at that time to the effect that the human rights act could not go further. We do not propose to outline them here, even though this was the limitation of rights so far as the handicapped was concerned, it did not even embrace the mentally handicapped community, even so far as rights of employment are concerned.
Now, if we were to proceed on the basis of the recommendation of the Special Committee—and it is an action-oriented Committee, I can assure you gentlemen—and have the Canadian Human Rights Act amended so that the handicapped community were covered completely by that act, would it be sufficient so far as meeting the needs of the people you are representing this morning is concerned?
Mr. Vickers: Again, I come back to the basic value question. I am thinking in terms of vocational and residential opportunities, and in particular, educational opportunities, if
they are, indeed, basic Canadian values, then I would argue that they ought to be entrenched with the Bill of Rights and not placed simply within the human rights legislation which can be amended by Parliament at Parliament’s will.
So that if you are talking about basic questions of value. speaking as a Canadian and as an advocate for handicapped people, I would argue that those basic values ought to be entrenched within the constitution and not placed necessarily within the Bill of Rights. A Bill of Rights is a second prize. We have never had any prizes for our handicapped friends, and if we are to take anything, obviously we would be prepared to accept amendments to the federal code.
On the other hand, it is still a second prize so far as we are concerned. The people for whom we advocate are now entitled to a few of the first prizes.
Mr. Dinsdale: You mentioned in your presentation—a vitally important point—access to education and training. We discovered, as we met with 600 people across Canada, that the area of learning disability is totally limited in its services in Canada, and this affects the area of the mentally retarded, in particular.
And the theme is that this has been a good year in Canada for the disabled. We have had the World Congress in Winnipeg and we are coming into the Year of Disabled 1981, and our report will be tabled to coincide with the Year of the Disabled. A theme of the report will be deinstitutionalization, getting the disabled out of what we call human warehouses where the care is merely custodial and where there is no provision for recreational, educational and transportation and all the other vital services that are needed to meet the needs of the disabled community. All this has to it an economic factor as well. lt is tremendously expensive—custodial care without any rehabilitation.
So if Parliament enshrines, as you are recommending, a Charter of Rights for the Disabled in specific terms, and if we got rid of the conflict between Sections 1 and 15, do you think it would be helpful in encouraging this process towards deinstitutionalization?
Mr. Mercure: Yes, we believe that type of protection would help our local association to make sure that the specific rights of individuals are protected. This would help us to create services within the community.
This is the reason why deinstitutionalization takes a very long time to accomplish, because most professionals, even most governments. address themselves to deinstitutionalization, but we cannot accept these people within the community without support services, which, in the long run, could be a lot more effective. and sometimes even less costly to the community as a whole.
More than that, we believe that any segregation for any group increases very rapidly the difference in behaviour and also it is a fundamental question of value in our society to accept the human person as he or she is, not to separate or segregate any group.
The mental retardation people have not been segregated for a long period of time. It is only in the last 100 years that that problem has arisen from the industrial era. Mentally handicapped people used to live within the community before.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Dinsdale.
Mr. Young: Thank you very much. I also want to thank you for appearing before the Committee and presenting such an excellent brief. I am also a member of the Special Committee on the Disabled and the Handicapped, and over the summer months, we had over 400 witnesses who made presentations to that Committee and without exception, everyone argued that disability and handicap should be included in any new charter of rights and freedoms.
I want to center on one specific area, immediately, because, to me, it indicates not only society’s attitude towards the disabled and the handicapped, but it is certainly a crystal clear example of the court’s attitude towards the disabled and the handicapped, and particularly mentally retarded individuals.
I want to spend a few minutes, if I may, on Section 7 of the proposed charter, legal rights. and to try and tie it into the absence of any provisions for the disabled and the handicapped under Section 15.
Under Section 7 of the proposed charter it is stated:
- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof
We have, under the Criminal Code, provisions at the present time, to issue a Governor General’s Warrant under that particular code, and I am advised as of June 1980 there were 834 individuals who were confined to psychiatric institutions after having been charged with a crime of some sort, and after being assessed by a review board of psychiatrists and lawyers, were declared not to be fit to stand trial.
As I say, there are over 800 Canadians who are confined to institutions who have not been tried, and who, in the case of the mentally retarded individuals, in all probability, will never be fit to stand trial.
There is one case in particular I want to raise with you and that is the one concerning a man by the name of Emerson Bonnar who in 1964 was charged with attempting to steal a woman’s handbag.
He has been confined in an institution in New Brunswick— and it is a maximum security institution, as I understand it— since 1964, because the Review Board does not consider him to be fit to stand trial.
In your opinion, in the absence of any specific mention of the disabled and the handicapped under this proposal and the definition under legal rights, would this at this stage help a person like Emerson Bonnar?
Mr. Vickers: I am not sure that would. I am very familiar with the Bonnar case. That case is a classic example of somebody having been labelled early on and having that label
remain on his back throughout his life. He has been labelled “mentally retarded” and “violent” and all the evidence which existed in 1964 and which exists today is contrary to that.
The evidence is that he is not violent. He is yet to be tried for the act of purse snatching. In my submission—and I have said this elsewhere—it is a classic example of the abuse of the criminal justice system. Whether the members of the community know it or not—and Mr. Dinsdale raise the question of the learning disabled—75 per cent to 80 per cent of the youngsters we have in the juvenile justice system are children with learning disabilities, to come back to the educational point. We know that. The jury have been inon that for ten or 15 years.
If the statistics below the border from the President’s Committee on Retardation were to carry through in this country— and I suspect they would-approximately ten per cent or better of the adults in the criminal justice system are mentally retarded people. I think it behooves us to recognize these statistics and to deal with the problem as a basic problem in terms of fundamental rights, rather than in terms of the criminal justice system.
Would it not be better, for example, to enshrine the positive rights of education in a bill of rights, and the right to vocational training so that these people can find their appropriate niche in life working in the community as substantial citizens rather than serving out their lives in a maximum security institution for, in the Emerson Bonnar’s case, the criminally insane?
There is no doubt that recommendations have been made for the amendement of Section 543 and onwards of the Criminal Code, both by the national Law Reform Commission and our oganization made recommendations some six years ago in terms of amendments to that provision, and the fundamental flaw lies in the provisions of the Criminal Code.
I do not deny that appropriate amendements in this bill of rights would be of some assistance. Undoubtedly Emmerson Bonnar has been deprived of his liberty for 14 years according to the principles of Canadian justice and the Canadian Criminal Code. Now, whether they are fundamental justice principles or not is perhaps a rhetorical question when you look at the result.
I would hope that Emmerson Bonnar, and our Association has become an advocate for Emmerson Bonnar and is taking today and continues to take steps to have his status corrected, but any help that we can get, whether that be through amendments to the criminal code or amendements by way of entrenching in a charter of rights would be most helpful.
The Joint Chairman (Senator Hays): Thank you. Mr. Young, your last question.
Mr. Young: Out of those 834 individuals who are confined in those institutions without benefit of trial, have you any knowledge of the numbers of that 834 who are mentally retarded.
Mr. Vickers: No, I cannot speak to those numbers but we are presently doing a survey throughout Canada with the
co-operation of the provincial authorities to try and determine that. I can tell you of my own experience when I was with government. The number in British Columbia in 1974 was 120 people.
We had at close look at what we thought were people who were inappropriately placed and by simply taking a close look at what we thought were inappropriate placements, within a short period of time we reduced the numbers from 120 down to 80, and that is with a very superficial, cursory look.
Now, I am not sure what the numbers are in British Columbia today, but i know for example there was a case in British Columbia of a young native Indian person who had been incarcerated there for three years without trial and his own only offence was that he had been public nuisance by throwing a brick through a store window. It is those cases of abuse which I think we could surface many hundreds if we were to look case by case at each individual situation across Canada, and it is that type of research we are trying to conduct right now. I suspect that it would be somewhere in the neighbourhood of perhaps 15 to 20 percent.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Young. Senator Lapointe.
Senator Lapointe: I would first like to congratulate Mr. Mercure and his colleagues, in French, on their excellent and enlightening brief.
I am very sorry that one of the most active members of the Special Committee on the Handicapped, Mrs. Thérèse Killens, is not here this morning with Mr. Dinsdale and her colleague from the New Democratic Party, but I will do my best to fill in for her, since I too am very interested in your cause.
You say, Mr. Mercure, that you fully support the Charter of Rights, basic rights, democratic rights, mobility rights and language rights. Do you not?
Mr. Mercure: Yes.
Senator Lapointe: One issue that seems to be of concern to you, and which my colleagues did not refer to, is the right to join a trade union.
Could you tell us whether the unions themselves are reluctant to let you join, or whether this is based on existing legislation.
Mr. Mercure: There are cases—and I will ask Mr. Vickers to provide details—where employers . . . In Quebec. the Bureau for the Handicapped is trying to increase the number of jobs available to the handicapped and the mentally retarded.
There have been several cases involving handicapped persons where an attempt has been made to have jobs considered as being suitable for the handicapped, but union rules, particularly with regards to seniority, have prevented this front being done.
There was, for example, darkroom work for the blind. We wanted photography companies to give blind people priority
for darkroom work and the request was turned down by the unions. This is the type of thing that is related to the union membership issue.
Maybe Bill could complete my answer.
Mr. Vickers: My experience with the trade union movement is no different than my experience with any community organizations, whether they be private or public organizations. It is largely a question of attitude, and given the opportunity and shown that the opportunity exists for handicapped people to work, I have found, certainly with the trade union people that I have spoken to, a willingness to venture into what is a new area.
I have no faults to lay with anyone. It really begins at an early age and that is why appropriate education is so important because if you and I had the opportunity to be educated side by side with a severely, profoundly handicapped person, our attitude today might not be to see that person as a handicap and to feel pity and remorse but to see that person as a whole person, as somebody that can contribute to our Canadian society. My experience with the trade union people, certainly on the west coast, is that when I have raised those kinds of issues they are no different than you and l and they begin to see what they can do.
Now, like employers and like public and private organizations, they are a long way away from actually accomodating the needs of our handicapped friends. That is why to entrench the value is simply to signal, if you will, to the trade union movement that all people, including handicapped people, have that as a basic Canadian right and that is why it is important. it is a beacon, if you will, and it affords our people the opportunity for vocational experiences which they heretofore have not had an opportunity to grasp.
Senator Lapointe: You said that you would like to see the minimum wage mentioned in the charter?
Mr. Vickers: I do not think one would deal with minimum wage per sc in the charter. i think what we are talking about in the charter is the opportunity for vocational training and vocational opportunities. David’s point was that there are people making two cents an hour in workshops, and I know of workshop situations on the west coast where people are making a dollar a week or things of that sort.
Now, it is time that those workshop opportunities be seen not as opportunities but as situations which keep handicapped people in a demeaning way of life. What we are talking about is not affording more workshop opportunities; we are talking about affording vocational opportunities where people can earn, not be given but earn a wage, and at the very minimum the minimum wage and we know of situations where those opportunities have occurred and people have gone off, if you will, on welfare and have become citizens supporting themselves and their family and community. So we are not asking for anything special, we are simply asking for the same opportunity as other Canadians, so i think that is the point.
Senator Lapointe: I see that you say in the province of Quebec they have a clause to protect the handicapped and you seem quite satisfied with this clause. Would you like to add something to it or to have it as it is in the Quebec government’s human rights?
Mr. Mercure: Bill 9, of course, as well as the L’Office des Handicapés au Québec have been a major step forward for the protection of the rights of handicapped people in that province. I believe this legislation is considered as a very progressive one and that several other provinces are considering implementing something similar. As far as we are concerned, what we want is a greater protection than just a legal one. in other words, we would like this protection to be enshrined in the Constitution, because, even if Section 1 is modified, it would probably afford greater protection than the one offered through a regular legislation, because the government would not be able to change it very easily. It would have to meet the special requirements established for amending the Constitution. I would like to add that people in Quebec are beginning to live with these new rights and the work of our local associations is specifically to make sure that these rights are actually implemented in the daily life of handicapped people.
The Joint Chairman (Senator Hays): The last question, Senator.
Senator Lapointe: Yes. Are you satisfied with the report of the Committee on the disabled when they say that full and equal protection should be provided for persons with physical or mental handicaps? You are satisfied with the declaration and you think it is encouraging?
Mr. Mercure: Yes. We mentioned, at the beginning of our testimony, that we were very pleased to have obtained this statement. However, it is still a very general statement and it will have to be specified, later on. The third paragraph of the preamble of the report, which i read a while ago, seems to us to be very satisfactory.
The Joint Chairman (Senator Hays): Thank you very much, Senator Lapointe. We have one more speaker, Mr. McGrath.
Mr. McGrath: I can be very brief, Mr. Chairman. I realize we have another witness; is that correct?
The Joint Chairman (Senator Hays): Yes.
Mr. McGrath: I would not want to keep the Manitoba witnesses waiting any longer because they are going to have little enough time as it is so i will get very quickly to my question.
l was struck by the question of my colleague, Mr. Dinsdale, with respect to the deinstitutionalizing of mildly mentally retarded people. l know that this is something that is happening across the country and indeed it is happening in Ontario. I know of course you are familiar with the Welch Green Paper, Community Living for the Mentally Retarded. I know it is happening in my own province, but something else is happen-
ing with that which disturbs me and I would like to hear how your association feels that this problem can be addressed by specifying handicapped rights within the charter, and that is what seems to be a propensity on the part of municipalities to legislate against group homes, in other words we take the mentally retarded out of the institutions and get away from the Bedlam psychology that still prevails in Canada in terms of our treatment of the mentally retarded. put them in homes so they can lead normal lives and we can treat them as human beings, and we come up against this roadblock of the municipalities trying to protect, I suppose, the best interests of their ratepayers and their neighbourhoods although I can not see how that would be any treat to neighbourhoods or ratepayers, but that is the situation I find developing and it has happened in my own area and I am sure it is happening across the country.
Mr. Vickers: Well, there is not doubt it is happening across the country and there is no doubt it is happening for a number of reasons.
The first reason it is happening, it comes back to the question of attitudes again and where do we begin to change attitudes, and my plea again is that we begin with our youngsters in school accepting the disabilities that our fellow Canadians have.
However, that does not take care of you or I who are aged and do not understand that people with disabilities are the same as us. One of the problems with respect, is the basic funding policies of provincial governments who will fund group homes of eight and ten people. and what we are talking about is a group home. a normal family environment and you know and I know that eight or ten people is hardly a normal family environment so there is a basic funding problem and if we could talk about funding homes of four or five or even six people. then our argument that we were in fact living in community as a family would be more viable. So that is the second problem.
The third problem is the problem of attitude and the problem of the inability to understand that these people have the right to live in community and live normal lives. There have been some recent encouraging decisions across Canada to assist us in this problem, the Bell Case in the Supreme Court of Canada, recently watered down slightly by a decision in the Ontario Supreme Court. We have had decisions made in British Columbia that take away the right of spot zoning in local municipalities, and where you deal with it I suppose is a structural question or an administrative question. It seems to me that if we are going to deal with it once and for all we have to come to grips with some more fundamental questions. attitudes, funding policies and things of that sort.
However, there is no doubt at all that what we are talking about as an association is community living for all Canadians. not just the mildly retarded. We are talking about community living for all Canadians.
The bill in British Columbia, for example. to keep somebody in an institution runs at $100 per day. We are talking about
$36,000 per year to keep somebody in an institution without any program and without any opportunity for an adequate social life. We think that those kinds of people can be brought back into the community and be made a part of our community and be given opportunities to thrive within the community for far less money.
Now, there may be transitional funding problems but when the bottom line is looked at, and we look at people. the value question is so important. These are Canadians and surely they have a right to get out of those institutions and live like you and I to the limit oftheir ability within their community.
Mr. McGrath: But my question was: can we legislate against these kinds of attitudes in an entrenched bill of rights?
Mr. Mercure: The situation varies from one part of Canada to the other.
I would like to point out to the committee that in Quebec, under a provision of Law 9 that was lobbied for by our association, no legal action can be taken under zoning regulations to prevent a group home from opening in a community.
In Quebec, then—and I believe Manitoba has a similar regulation—no one can take legal action to prevent group homes for the handicapped from operating, no matter what the zoning regulations are.
It is a provincial law.
Le coprésident (sénateur Hays): Thank you very much. Mr. McGrath.
We appreciate your being here this morning, Mr. Mercure along with Mr. Vickers and Mr. Lincoln.
We have your brief and we will consider it very, very carefully, I am sure the Committee will at the time we are reporting.
We appreciate you being here, thank you very much.
Mr. Mercure: Thank you for your attention and we hope that your efforts will produce results.
The Joint Chairman (Mr. Joyal): Thank you. Mr. Mercure, Mr. Lincoln and Mr. Vickers.
2. November 25, 1980
The Joint Chairman (Mr. Joyal): Thank you very much, Mrs. Chabot.
I would now like to ask the representatives of the Coalition of Provincial Organizations for the Handicapped to come to the table.
In particular, I would like to invite Mrs. Monique Couillard, Mrs. Yvonne Peters, Mr. Ron Kanary and Mr. Jim Derksen to take their place at the witnesses’ table.
The Joint Chairman (Senator Hays): I wonder if the coalition of provincial organizations of the handicapped would please come forward. You may proceed, Mr. Kanary.
Mr. Ron Kanary (Vice-Chairman, Coalition of Provincial Organizations for the Handicapped): Thank you, Mr. Chairman. On behalf of the Coalition of Provincial Organizations of the Handicapped, I would like to express our appreciation for this opportunity to participate in what we believe is one of the most important deliberations in Canadian constitutional history. Our National Council is pleased to be represented here today by this delegation representing all our members and associates across Canada, united in determination to see the rights of disabled Canadians recognized in the constitution.
The Coalition, as some of you may know, is a national alliance of nine independent provincial organizations of variously disabled persons functioning democratically so as to represent their views and concerns. At the local level, these nine provincial organizations encompass about 80 chapters representing some 15,000 to 20,000 disabled Canadians.
We gladly endorse the constitution of Canada and whole-heartedly welcome entrenchment in the constitution of a Canadian Charter of Rights and Freedoms.
However, we believe there are several amendments which should be made to the proposed Charter. Of most importance to disabled people in Canada is that disability or handicap should be included as grounds protected from discrimination under Section 15(1) and we recommend this amendment to you.
We recognize and thank members of Parliament, Peter Lang, Therese Killens, David Smith, Stanley Knowles and Neil Young, who spoke for this amendment during the House of Commons debate prior to the striking of your Committee. The all-party House of Commons Special Committee on the
Disabled and the Handicapped in its first report to Parliament in October of this year stated:
Should it be the will of Parliament to entrench Human Rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical and mental handicaps.
Chief Commissioner Gordon Fairweather, in his presentation on behalf of the Canadian Human Rights Commission to your Committee, said any list of prohibited grounds of discrimination in Section 15(1) is incomplete and does not offer adequate protection if it does not include physical or mental handicap. The presentation of the Canadian Jewish Congress to your Committee last week also called for this amendment. The Royal Canadian Legion and the Canadian Labour Congress, we are pleased to know, also support our position; and most likely, many more who will come before you will.
This level of support for our inclusion in the non-discrimination rights section of the Charter demands that the objections to this amendment cannot be vaguely stated, drafting or definition concerns as at present; surely this level of support demands that objections to the amendment must be clearly demonstrable and justifiably sound ones.
The growing awareness and concern about this in society is based on a true understanding that disabled people are a minority who have suffered discrimination which has limited their participation in society and who therefore. require protection of the law. This social understanding calls on you to include disability or handicap as a prohibited ground of discrimination in Section 15(1) of the proposed Canadian Charter of Rights and Freedoms.
There are three kinds of advantages in amending the Charter to include protection for disabled people.
Firstly, constitutional protection of the rights of disabled people would give high symbolic profile to the social concern to recognize and protect these rights. It would set the tone for an improved future. When we are denied service in a restaurant simply because of our blindness, or employment because of deafness, or housing because of a spastic movement disability, we are often injured twice—once by the act of discrimination itself and again by the shocking realization that the state offers us no protection from such discrimination. This situation still pertains in three provinces of Canada; in the other seven provincial jurisdictions, the provinces have taken, to various degrees, a leadership role in providing human rights protection. It will be a profound joy in such circumstances to substitute, for the helpless feeling of being relegated to the refuse. as if with no value or right to expect better than the prejudice or discrimination offered to us in the past, the reassuring knowledge that we are protected from such prejudice and discrimination by the Canadian constitution.
The Canadian Charter of Rights and Freedoms will articulate the most basic and cherished values of our society and place them in the basic legislation of the land. This alone will set a new tone which of itself will do much to redress the injuries of exclusion and prejudice that have been our inheritance.
Secondly. the inclusion of disability as a prohibited cause of discrimination. as it applies to the substance of the law, will do much to change existing laws at municipal. provincial and federal levels which do discriminate against disabled people. A good example of such a needed change is the legislation which denies disabled people the protection of minimum wage legislation in various provinces and in the federal labour code.
No longer will we remain the only category of adult Canadians whose labour and productivity cart be bought for twenty-five cents a day and less. Lest this example should be misunderstood, the constitutional change we recommend to you will not mean that all centres offering daytime activity for disabled people will be required to pay minimum wages. but it will mean a distinction will have to be made between daycare. activity centres where people do not work and which are therefore exempt from minimum wage standards. and settings where people work which will be subject to such standard protections from exploitation.
The amendments we are recommending to you would also help preclude any future legislation at municipal. provincial or federal levels which would discriminate against disabled people. Forty years ago Nazi Germany enacted legislation which called for compulsory sterilization of certain disabled people in the name of racial eugenics. Other disabled people were murdered although the word used was euthanasia. Even today in this country. compulsory sterilization is sometimes talked about for certain disabled people and the Ontario Association for the Mentally Retarded is required to have a public policy against any form of passive infant euthanasia.
The Canadian Jewish Congress, in its presentation to you a week ago today. speaking for the inclusion of handicap in Section 15(1) referred to a brief they submitted to the Special Parliamentary Committee on the Disabled and Handicapped wherein they made the same recommendation. They said, in that brief. that the ramifications of our failure to firmly establish equal legal rights for our handicapped and of our near automatic exclusion of them from the mainstream, resulted in events in the not-too-distant past which still cast shadows over us dark enough to send cold shivers running through our souls.
For those of us who still remember, or who have taken the trouble to learn about it, it was in Hitler Germany that the retarded, the gypsies, the physically and emotionally handicapped. so easily became early fodder for the destruction machine.
It is interesting how little is said about this dimension of the holocast. This neglect to recall or analyze this particular dimension of the holocaust gives us a frightening insight as to the state of our present moral crisis in respect to what we describe as â€˜the disposables of our society.
We value the dignity of the individual and his right to life and security of the person, and have already articulated these values in our draft constitution Section 7. However, in light of history and the ongoing association with disability, of concepts such as racial eugenics and passive euthanasia, disabled Canadians deserve the same reassurance of the amendment we recommend to ensure
the right . . . to the equal protection from the law without discrimination because of. . . disability or handicap,
So that forty years from now such atrocities could not so easily be perpetrated in Canada. Disabled Canadians need to know they are secure from such dangers and that their fellow Canadians hold values which embrace the right to life and security of the person for everyone. including disabled people. The amendment we recommend would articulate and help preserve these most important values which are held by the Canadian people today.
The third general advantage that the inclusion of disability or handicap as a prohibited ground of discrimination would produce, as applied to the administration of the law. is to reinforce human rights protection as an ordinary legislation level. We have struggled for and achieved this in seven of the ten provinces, and have it at the drafting stage in the remaining three. This ordinary legislation level protection, through setting up Human Rights Commissions as courts of first recourse in matters of discrimination, represents the major means by which non-discrimination rights are implemented for the individual who experiences discrimination.
We agree with Chief Canadian Human Rights Commissioner Gordon Fairweather that the Charter of Rights and Freedoms should apply to both the substance and the administration of the law.
We believe that Section 15(1) of the proposed Charter will then make it possible for the decisions of human rights commissions to be appealed to higher courts on constitutional grounds. This will do much to improve the quality of protection on grounds which are listed in Section 15(1). The listing of disability or handicap in Section 15(1) then will be important to disabled Canadians as it will improve the protection already available at ordinary legislation levels.
The omission of disability as a listed category in Section 15 cl) would probably significantly damage the quality of protection already achieved at the ordinary legislative level for disabled Canadians. It seems obvious to us that once the Charter of Rights and Freedoms is in place, together with Section 15(1), human rights commissions, when allocating their necessarily limited staff and legal resources will give
higher priority to complaints of discrimination on grounds which are listed in the constitution because of their potential for appeal to higher courts on constitutional grounds.
Hence, if disability is not among the listing in Section 15(1), complaints of discrimination on grounds of disability will be dealt with using whatever resources the commissions have left over after dealing with complaints on grounds which are listed in Section 15(1). Inadvertently, the Canadian Charter of Rights and Freedoms will create a first and second class of rights to protection from discrimination.
We believe we have a compelling case for the inclusion of disability or handicap as a prohibited ground of discrimination in the proposed Canadian Charter of Rights and Freedoms.
Mr. Chrétien indicated in your Committee meeting of Wednesday, November 12, in response to a question from Mr. Bockstael that the difficulty in adding “handicap” to the list of prohibited grounds was one of draftig a precise legal definition for incorporation into the Charter.
In our view, the Charter of Rights and Freedoms is not an appropriate place for definitions. Neither is it necessary to define disability or handicap or degree of these in the proposed Charter. We note that it has not been necessary to define “religion” in the Charter, despite the plain fact that we will continue to discriminate against religions which practice human sacrifice. We have prepared a rather lengthy document refuting this definitional and other objections to the inclusion of disability or handicap in Section 15(1). This is attached as an appendix to this brief and includes eight quite similar definitions presently found in non-discrimination statutes at federal and provincial levels. We have decided to separate this lengthy section from our presentation, but will be happy to
answer questions in this area or read our document into the record if desired.
Mr. Chrétien suggested on November 12 to your Committee, as had the Prime Minister earlier in the House of Commons, that the inclusion of disability or handicap in Section 15(1) should wait until it could be done in Canada by amending the patriated constitution, We wish to note that, indeed. the inclusion of the entire Charter could wait until such a time-but in fact as Mr. Chrétien indicated on page 77 of Proceedings for the Committee meeting of November 13, there are some reasons why entrenching a Charter of Rights and Freedoms for all Canadians should be done now. We believe these reasons also apply for the inclusion of handicap in Section 15(1) now, and not after patriation.
Mr. Fairweather and others have spoken to your Committee about the advantages of fitting the Canadian Charter of Rights and Freedoms to the international context including the international covenants Canada is party to.
We call your attention to the fact that Canada was one of fifty co-movers at the United Nations at the Universal Declaration of the Rights of Disabled People in 1976. Canada was also one of two co-movers of the resolution in the United
Nations which established l98l as the International Year of Disabled Persons with the themes of full participation and equality. Including handicap in Section 15(1) of the proposed Charter would be a good demonstration that our domestic actions are in line with the policies we are promoting in the world.
As you can see by our delegation, disabled Canadians are also men and women, Mennonite, French. Irish. and so on; indeed disabled Canadians are all colours, races, religions and ethnic origins. For this reason, our concerns about the proposed Charter naturally go far beyond the inclusion of “handicap” in Section 15(1).
We have studied the whole of the Charter and the various recommendations and concerns that have been brought to your Committee. We find the package of recommendations brought to you by the Canadian Human Rights Commission overall of most value, and therefore, generally endorse and comment it to you.
We do this with only one caveat, that we prefer the Commission’s second option for the wording of Section 15. as found on page 5A:4 of the record of your Committee meeting of November 14, 1980 and listed on that page as point 2.4. The relevant parts of this then read:
15.(1) Everyone has the right to equality under the law and to equal protection of the law without discrimination on grounds such as . . . physical . . . handicap . . .
While our concern and recommendation to you can be reduced to the idea that “handicap” be included as a ground protected from discrimination, we also commend generally the Canadian Human Rights recommendations to you because we feel they have much merit overall, and because we feel the time has come to reach for a consensus and wish to contribute to this consensus process.
A constitution is most basic and fundamental legislation. As such it deals with basic and fundamental issues. The issue as to whether Section 15(1) of the charter of rights and freedoms in the constitutional bill should be amended to include “disability” is also a basic and fundamental matter.
Some disabled people in Canada apply the label TAB to Canadians without disabilities. TAB is an acronym for temporarily able-bodied and is used to remind society that disability is a condition which can occur to anyone at any time. at any level of society. Transport Canada’s demographic study indicates that 34 percent of all persons who reach the age of 80 are disabled in relation to mobility. It may be useful to think of the amendment we propose as a kind of insurance or assurance. It is in fact an assurance that the society we live in will continue to progress toward a society which is supportive and open to the continuted participation of people who are or become disabled. It is an assurance that in the event of disability, one will not be relegated to inferior education, low income and the poverty of eitperience and life style symbolized by the institutional residence and attached historically to the condition of disability.
We who are already disabled know better than to imagine any legislation, even a constitution, is an instant cure-all for our problems. However, we do believe that the basic and fundamental legislation of a constitution must point to a new standard, and in a direction of orderly change toward that standard whereby the whole of society will benefit.
Thank you, Mr. Chairman.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Kanary. I shall ask the Honourable Walter Dinsdale to question the witnesses.
Mr. Dinsdale: Thank you, Mr. Chairman.
I would like to begin by welcoming the COPO delegation here this morning, Ms Peters, Mr. Kanary and Mr. Derksen, who, as we have heard in the brief presented, are providing and have provided very creative leadership in the campaign for a charter of human rights for the disabled.
I have only one comment to make about the brief. I notice in the names that you presented on the first page you excluded any reference to one party in the House of Commons and, Mr. Chairman, I can only say that is because we were working under closure and we were in the speaking line-up to take part in the debate that set up this committee and we did not have an opportunity to make our representations but I would say, Mr. Chairman, that I think it is well known that there has been a campaign going on in the House of Commons for at least a decade to set up a special parliamentary committee, and one of the key areas of concern was human rights for the disabled. I might say, by way of introduction, that since this special committee was set up just about a year ago now, there has been a marvellous change in the attitude across the country, in Parliament. to the Bill of Rights for the disabled.
I think you are aware, and this has not been mentioned in the brief, that Canada hosted the Rehabilitation international Congress for the Disabled in Winnipeg last June. That was a congress that was planned over a period of four years by the Canadian Rehabilitation Council for the Disabled and I think everyone will agree that its theme of integration had a profound impact on the media, on the press and on the people of Canada. and I am sure COPO will agree. too, that the theme we are espousing in our special committee on the disabled of de-institutionalization, getting the disabled into the community, integrating the disabled into the community, came to a head at that congress in Winnipeg.
Also, of course, Canada has been sponsoring the International Year for the Disabled. It was just a year ago that I had an opportunity to speak at the United Nations and one of the points that l made there at the time as a response to the IDYP Resolution was that human rights should be at the fore, it always has been at the U.N. since 1975, at the 30th Session of the General Assembly when the human rights code was passed, when the provincial governments responded and we had hoped that the federal government might respond in 1977 when the Human Rights Act was passed but, as you know. there was a considerable degree of reluctance at that time to embrace the United Nations code that does include most of the recommendations that you have made in your excellent brief here this morning.
Well now, you have before you, and it has been circulated. the first report of the Special Committee on the Disabled and we have felt so strongly about the human rights issue that we have made a primary concern the recommendation that the Human Rights Act be amended as quickly as possible to include human rights for the disabled.
Having said that, Mr. Chairman. I would like to ask the witnesses this morning if they are as concerned as Mr. Fairweather, who is the Commissioner for administration of the Human Rights Act, if you are concerned as he was about the conflict as it was outlined in Section I of the resolutions that we are considering, which defines the guarantees of rights and freedoms subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. The point at issue is that it is only recently that there has been wide acceptance that the disabled should be included in a charter of human rights. Do you share the same concern as Mr. Fairweather that you can drive a truck through art article of that kind with respect to human rights?
Mr. Jim Derksen (Coalition of Prineial Organizations for the Handicapped): Well, Mr. Dinsdale. I would like to say first of all that we are certainly aware of our efforts on our behalf over the years and the efforts of many other people from the Conservative Party on the many fronts that are facing disabled people today. We did, however, confine our remarks in our brief to the issue of entrenchment of the Charter of Rights and Freedoms.
Mr. Dinsdale: This is what always happens under closure, Mr. Derksen.
Mr. Derksen: However, regarding Section I and the other recommendations that were made by Chief Commissioner Gordon Fairweather, we did agree that his alternate wording seemed to us. and we are laymen, a better safeguard or a better series of safeguards for the rights of Canadians overall and so we decided to give a general endorsation to his package of recommendations.
Mr. Dinsdale: I take it from that reply. Mr. Chairman, that you are satisfied that your amendment proposed for Section 15(1) would overcome the deficiencies of Section 1, that there would be no loopholes created as it result of the rather vague wording. This is the first section of a most important document, a very profound revision of the constitution of Canada and there are several authorities in the field of human rights that have focussed in on the deficiencies and the loopholes of Section 1.
Mr. Derksen: It did seem to us that the wording of Section 1 was unncessarily broad and perhaps covered too much of the Charter itself and that non-discrimination rights, as Chief Commissioner Gordon Fairweather recommended, should be exempt from Section 1, but should, rather, have a separate caveat in the form of Section 15(3) as proposed by the Human Rights Commission, which would enable a reasonable application of non-discrimination rights and a narrower interpretation than was made available through Section 1.
Mr. Dinsdale: I would take it, Mr. Chairman, that Mr. Derksen and the others are in tune with the recommendation of our Special Committee, notwithstanding what might happen to the resolutions before us, that we proceed immediately with amendments to the Human Rights Act of l977. They were brought into effect only three years ago, Mr. Chairman, and I do not know whether you were in the House of Commons at that time, but you will remember the strong resistance towards general acceptance of the principle of human rights.
I presume that our witnesses are strongly in favour of the recommendations of our Special Committee which we have given high priority to by the very fact that we have issued an interim report before coming down with our final report.
Mr. Derksen: We are very pleased by the urgency indicated in the submission of the preliminary report on this matter. This matter of amending the Canadian Human Rights Act is not at issue in this Committee, however, but l should say that having pressed for this ordinary legislation amendment for many years. having received promises of support from both present opposition parties and a commitment in the Throne Speech from this government, we feel that this amendment is far overdue and is not really open to debate any longer. We are really only waiting very anxiously to see it done.
We are now concerned about the constitution and the inclusion of disability in Section 15(1), which we believe is a very important matter before the nation today.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Dinsdale. Mr. Young.
Mr. Young: Thank you, Mr. Chairman.
I, too, am a member of the Special Committee on the Disabled and the Handicapped and as you know we spent most of the summer months going across the country hearing deputations and witnesses, and by the time we were finished going across the country we heard from over 400 deputations, and without exception each one of those witnesses argued very strongly for inclusion of the disabled and handicapped in any human rights legislation. That is not surprising, I think, when you consider there are something in excess of 800,000 Canadians who are disabled or handicapped in one form or another, which totals about 10 per cent of the workforce and is probably in excess of that. At the present time under human rights legislation there is some protection against discrimination in employment and yet the evidence shows that out of that 10 per cent of the population there is still a 70 to 80 per cent unemployment level amongst the disabled and handicapped community.
I remember when we were in the United States we were told by both government officials and people from the disabled community that there was never a real commitment on behalf of government or its agencies or the private sector towards employment programs for the disabled and handicapped until
amendments were made to their human rights legislation down there. It was only after these amendments were made that any real commitment came forward. Is that what you hope for here if those amendments are made to this legislation, that it normally increases public awareness and it forces government to give leadership to the private sector, in particular to employ disabled and handicapped people?
Mr. Kanary: Well, again, the amendment to the Canadian Human Rights Act, is that what you are referring to?
Mr. Young: Yes.
Mr. Kanary: Again, as Jim mentioned, as far we are concerned it is no longer up for debate, we are just waiting for it to come. However, the experience in the United States has indicated that constitutional protection is most essential to reduce; that 80 per cent unemployment rate to a reasonable figure.
Mr. Derksen: I would just like to add to that by saying that in America of course the Bill of Rights has been around for a long, long time, but it does not specify the number of minorities that have recently become discernible as needing protection. In America, in fact, it was the Rehabilitation Act of 1974, Section 504, which provided for non-discrimination of disabled Americans, and it was a very broadly-worded section, but the regulations that were subsequently written as to the implementation of Section 504 were very stringent and they resulted in dramatic kinds of changes, changes such that if I go camping in America I can count on an accessible washroom in every campground I get to; changes such that if I drive from Winnipeg, which is my home, the 80 miles to the border, I know there is not one deliberately accessible washroom on the way to the border, neither is there at Canadian customs, but as soon as l cross that invisible line there is a big sign, “Handicapped Parking”, and there is a ramp and there is an accessible washroom. I go to a small town of 500 people and I find that the town hall and the State building and what federal buildings exist in that small town are all accessible to me.
It is that kind of change that has occurred over six years that I think we hope for in Canada. This is not to say that it is going to happen immediately, but we hope there will be progress toward that goal and that in Canada the inclusion of disability in the constitution will set the kind of tone that will result in subsequent legislation and regulations which will give us that kind of access to opportunity.
Mr. Young: Well, we are not only talking about access to employment even though in all the preparations for 1981, including the work of this Special Committee, the evidence as I see it has certainly raised public awareness to the point, particularly in this year where there is an increasing number of cases coming before the Canadian Human Rights Commission from the disabled and handicapped community about discriminatory employment practices within government bodies and government agencies. We are also talking about equal access to services that we temporarily able-bodied people take for granted.
I used to think in this country that the rights to education were a principle, and yet we have experienced over the summer months, and in listening to people we have discovered that
there are thousands of kids across this country who are disabled or handicapped in one form or another who are denied access to education, so we are not only talking about access to education, we are talking about accommodation, transportation and other goods and services that, as I say, we take for granted.
Would you like to comment on education in particular because it seems to me that that is a key area for the disabled and handicapped people. without having equal advantages in the field of education you are denied equal access to employment and a whole host of other services that there are in society.
Ms. Yvonne Peters (Coalition of Provincial Organizations for the Handicapped): I will just comment on that question. I think that what you have said is very true, that disabled people need to have equal access to education. Unfortunately, that is not always the case. There are not only architectural barriers that can get in the way, there are needs for facilities such as sign language interpreters for deaf people and access to Braille material and so on for blind people.
If we go back to the constitution. what we look to from the constitution is a document that will set a tone for disabled persons in this country so that we can build legislation, or at least use it as a foundation to build legislation so that we can start improving things like educational opportunities and we can start providing equal access in necessary facilities and so on.
Mr. Young: The one last area I want to touch on in particular is the whole area of de-institutionalization because I think probably in terms of society’s attitudes towards the disabled or handicapped people, it is reflected most clearly I think in how society views disabled or handicapped people.
In the past there has been a tendency to view someone who is disabled or handicapped as a sick person. and of course society keeps sick people in institutions, when the facts of life are that because you are disabled or handicapped does not mean you are sick; you are disabled or handicapped. And the thrust of governments has to be in the direction of assisting the disabled community to come out of institutions and to live as normal a life as possible within the community.
The Special Committee on the Disabled and the Handicapped have certainly developed that as a theme in our discussion.
Do you see that as playing an important role, not only in 1981 but beyond?
Mr. Kanary: Probably one of the basic reasons why young disabled people are institutionalized is that, first of all, are the attitudinal problem which has developed over so many years. Secondly, because of the lack of appropriate housing; that goes back to the accessibility problem.
As Yvonne has mentioned, we look to the constitution for a final recognition that disabled Canadians are in fact Canadians as well and that the constitution, hopefully, will set a mood so that we can become included in the planning and decision making process over the coming years; so that we could allow
for adequate housing, and support services for individuals who require such services, and the many other services, accommodations and facilities which we are presently being denied.
We are looking for the constitution to set a tone so that changes may come about, not overnight but over a period of years, that we can become fully integrated and active and contributing as a force of people in society.
The Joint Chairman (Senator Hays): Thank you, Mr. Young.
Mr. Derksen, did you want to say something?
Mr. Derksen: I want to follow that up by saying that presently disabled people and their problems are often viewed through a very biased cloud of emotional responses. This has resulted in a situation which has become clear to the Special Comittee on the Handicapped and Disabled wherein the people are institutionalized at 20, 30 or 40,000 dollars a year, where they could be integrated in the community if they had, say, five thousand dollars worth of support services.
Now, it is economically sound to de-institutionalize most disabled people who are presently in institutions.
There has also been a kind of emotional reaction to our call for human rights based upon fear that human rights for disabled Canadians will somehow have a disruptive effect on our society.
We have shown in the appendix to our brief that that fear is really not based upon any sound reasoning, and that it is an unnecessary fear generated out of the kind of bias and emotion that people feel within themselves when confronted by disabled people.
What we need is a clear-minded, objective approach to our problems; and that approach, I would suggest, starts with an articulation that disabled people are Canadians and should have the right to protection from discrimination as a matter of Canadian heritage or, if you like, of constitutional right.
The Joint Chairman (Senator Hays): Dr. Peter Lang.
Mr. Lang: Concerning the list of those protected from discrimination under Section 15(1), this Committee has had the importance of this issue stressed by Mr. Gordon Fairweather, the Chief Commissioner of the Canadian Human Rights Commission.
The first specific issue that Mr. Fairweather deals with concerning human rights if the disabled. I quote from you minutes of November 14. Mr. Fairweather states:
Now to get specific about Section 15, the non-discrimination rights section and the one that has most implications for us in the work you have given us, the list of grounds ‘ presented in that section is incomplete. in particular no promise of equality under the law is made to the disabled.
Mr. Fairweather goes on to state:
Costs are not relevant to the guaranteeing of the right to equal protection of the law.
Mr. Chairman, all parties have supported in principle the inclusion of the disabled for protection in the constitution. ln its first report to Parliament. the Special Committee on the Disabled and the Handicapped stated—and I would like to pass this report out so that you could follow it on page 1, paragraph 3:
Should it be the will of Parliament to entrench Human Rights in a patriated Constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicaps.
There is public support, shown by Mr. Fairweather in his report of a survey of 2,000 Canadians as presented to the Special Committee on the Disabled and the Handicapped and found in their minutes at page 205. which minutes I would like to table later on.
Mr. Chairman, we know that discrimination against the disabled exists. The disabled have told us across the country. The Chief Commissioner of the Canadian Human Rights Commission has told us: the media tells us: Canada has already officially acknowledged discrimination against the disabled and signed at the United Nations on December 9th, 1979, the Declaration of the Rights of Disabled Persons.
The disabled constitute approximately 10 percent of the population. It is in the Canadian spirit to have a constitution that clearly covers 100 percent of the population.
Mr. Chairman, I would like to direct my first question to Mr. Derksen.
The argument of cost has been used against the inclusion of the disabled in Section 15(1). Mr. Derksen, I wonder if you any comments on this?
Mr Derksen: This seems to be based on the idea that simply to place disability or handicap in Section 15(1) without any limiting clauses might result in the courts imposing disruptive change on our society: for example, that all buildings without elevators be equipped with elevators.
Now, we see that religion, sex and age are also included in that section without any limiting clauses. We see that Section 1 or Section 15(3) as proposed by the Human Rights Commission, would allow the courts to interpret the reasonableness or the justifiable necessity of limiting that protection from dis crimination for age, sex and religion.
Sections 1 and 15(3) would make possible an interpretation, in regard to protection from discrimination on the basis of age, by the courts that would uphold 18 as the minimum age for, say, the purchase of liquor, firearms. voting in federal elections. There seems to be a misunderstanding that there is no comparable limiting clauses in existing statutes. and no comparable precedents in existing case law to limit reasonably. where justifiably necessary, that right to protection from discrimination.
In our appendix, we point out the fact that seven provincial human rights commissions and the Acts that they administer
include limiting kinds of clauses which take into account undue hardship for the vendor of a service; which take into account the need for the employer to require bona fide occupational requirements; which take into account and allow a mechanism whereby the commission or tribunal can determine reasonable qualification to the right.
Now, all of these things are in place. The courts will not have to. We will not desire that in a vacuum in interpreting the constitutional protection for disabled people from discrimination.
We believe that those mediating mechanisms which are already in place will enable an orderly process of change to a point where disabled people would not be discriminated against in the provision of goods, services and in their endeavour to achieve employment and so on.
We believe, in fact, and this has been shown by the strong economies of Northern Europe, that enabling disabled people to participate in society would be an extremely cost effective course of action for this country to take.
We know that in Sweden technical aids are made available to disabled people who require them for employment and for independent living within the community. The same is true in West Germany.
We believe the cost argument which underlies much of the resistance or objections to the inclusion of disability in the constitution is not a real one.
in our brief we call on those who object to the inclusion of handicapped in the constitution to come up with demonstrably clear and justifiable sound objections, not merely the kind of vague implications or references to drafting and definitional problems. The definitions exist; they are very similar from one jurisdiction to another, which tells us that they have been tested and that they work.
We believe that Chief Commissioner, Gordon Fairweather, has a good deal of experience in administering protection from discrimination for disabled people. We think that his opinion should carry a lot of weight here.
Mr. Lang: Mr. Chairman, my second question is also for Mr. Derksen.
-Are there any other governments which have provided protection from discrimination for the disabled, and as a second caveat to that. can you give us any information on the economic factors involved with these governments, and in particular whether they have presented any impediment?
Mr. Derksen: Well, I can say that Nova Scotia, New Brunswick, Prince Edward Island, Quebec, Manitoba, Saskatchewan and Alberta, all give comprehensive protection from discrimination to the disabled through the ordinary legislation of human rights acts. Some of these have been in place since 1974; others are more recent.
There is no indication that these provinces are at the brink of bankruptcy because of that protection.
Ms. Peters: I wonder if I can add to that. I am from Saskatchewan where we have had comprehensive protection in our Human Rights Code for disabled people for the past year.
As well as being a member of COPE, I am also an employee of the Human Rights Commission and I get to see different perspectives, I suppose.
In Saskatchewan for the past year we have had approximately 40 complaints based upon discrimination because of disability, 20 of which have been in relation to accommodation complaints. I might add that we have in our code a clause which exempts people or businesses or employers if making their place accessible would cause undue hardship and inconvenience.
I might say that, out of all those 20 complaints, we have not activated that mechanism, because once people have been informed that they are violating the law and how they can correct it, they are usually quite willing to do so.
If I may, I would like to refer to an example which occurred in Saskatchewan. We had five complaints laid against the University of Saskatchewan which contained a number of old buildings that disabled students were not able to have access to.
Technically. in the code, I suppose we could have—well. they were violating the code, and they could have been forced to make the building accessible immediately. This might have caused an economic hardship.
However. the agreement that was agreed upon and settled on between both the respondent and the complainant, established a timeframe in which over the next couple of years allotments from the various budgets would be ascribed to making the building accessible.
What I am trying to illustrate here is that disabled people are willing to be reasonable and that there are methods of overcoming access problems, and certainly Saskatchewan has not been brought to its knees with bankruptcy or anything like that.
We have to realize that this has to be done reasonably and with commonsense.
The Joint Chairman (Senator Hays): Thank you very much. Ms. Peters. Dr. Lang, thank you.
There are two people here who would like to be heard. I wonder if we could confine it to a short question? We have Mr. Halliday and Mr. Smith.
Mr. Smith: Thank you, Mr. Chairman,
I would like, first of all, to congratulate the committee on being here and presenting us with this brief. As a member of the Special Committee on the disabled and the Handicapped. I am aware of the real concerns that our witnesses have today in regard to discrimination.
I think I would be very remiss, as a member of the Official Opposition, if I did not support the comments which came from my colleague, the Honourable Walter Dinsdale, when he brought to the attention of people the serious ommission
certainly of his name from the list of those who have been prominent in putting forward the needs of the handicapped over the years. Indeed, the formation of the antecedent of this committee a year ago was due entirely to the efforts of Mr. Dinsdale, his approach to the United Nations on behalf of Canada has obviously been ignored, and I am surprised that our witnesses forgot that closure did prevent many members from the House of Commons from all parties, indeed, from being involved in this very debate which you have some concern about. To me, that is a form of discrimination, and I am surprised that it is coming before this committee from our witnesses today.
I think, Mr. Chairman, all Canadians are concerned about the problems of discrimination and how we should deal with it. We want to ensure that Canadians, indeed, the handicapped, will not be discriminated against.
The difficulty, however, is to know whether that can best be achieved by entrenehment or otherwise.
So I would like to ask the committee whether in their study of this whole subject they have given consideration to the possibility of amending the Canadian Bill of Rights, and giving it primacy, as one alternative and have they given consideration to the fact that some countries, such as the United States of America and Russia, do have entrenched Bills of Rights: Canada does not. What are the benefits, vis-a-vis the two which are obvious to us all?
Thirdly, they have raised the matter of minimum wages on page 3 of their report. Have they studied the recently released document by the Economic Council of Canada which throws a lot of question and doubt as to the effectiveness, indeed, of whether or not minimum wages do what they are supposed to do?
Finally, have they given consideration to the difficulties which we have seen both in Canada and more particularly in the United States where they have an entrenched bill of rights, to the difficulty that some judges may be at the extreme end of the spectrum one way or the other and cause great difficulty in the interpretation of what people really want?
Mr. Derksen: I would like to start by saying that having worked very closely with the Special Committee on the Handicapped and the Disabled, and having known Mr. Dinsdale for many years and his efforts on behalf of our constituency, we wholeheartedly are aware of the Conservative Party’s efforts on our behalf, and Mr. Dinsdale’s in particular.
it was a listing of those members who had spoken specifically for the constitutional amendment that is the substance of our brief today that was given. That was the only the reason why there was no mention of members from the Conservative Party.
In fact, I would like to point out that Mr. Dinsdale last week on Standing Order 43 called for the long-awaited amendment to the Canadian Human Rights Act and we are aware of that intervention and appreciative of it.
We are aware that there are many constitutions in the world today which are not honoured. We are also aware that there
are constitutions which do find a good deal of honour in the courts of the countries where they are in place.
We have surveyed just this past week, our National Council which is representative of each of nine provinces and we find that our organizations are in favour of an entrenched Charter of Rights and Freedoms, and that we do want inclusion in it. We can only hope. together with all around this table. that if and when this Charter is entrenched. it will be honoured by the courts. Some of us as individuals, although we have not discussed it as the larger organization that we are, are concerned about extreme judgments made by individual judges. Again. it is our hope that the judges will receive and accept clear direction from Parliament in the form of this constitution and the Charter that is intended to be entrenched in it, so that they will give good and reasonable consideration to the interpretation of the Charter.
We are not familiar with the minimum wage document which you referred to. However. I think it is safe to say to that in the area of minimum wage, as long as there is minimum wage legislation in Canada designed to protect Canadian workers from lower exploitation of wages. disabled Canadians should be protected by that legislation. At such a time that it may be the wisdom of our country to eliminate minimum wages, then we can reconsider the entire matter and perhaps need not be included at that point.
The Joint Chairman (Senator Hays): Thank you Mr. Derksen. ‘
Mr. Smith: Mr. Chairman, I appreciate the pressures of time and I think I will forego questions, but there are a couple of brief comments that I would like to make.
The members of the Committee will be aware that I am the Chairman of the Special Committee for the Disabled and the Handicapped; and one point I would like to make is that we have had an opportunity of hearing over 600 witnesses right across Canada in t8 different cities and it is quite clear to us that COPO which is represented here today by four very articulate people. is in fact the voice of disabled people in this country. They are very legitimate spokespersons for the disabled community and their headquarters is in Winnipeg. They are well organized and have been most helpful to the work of the Committee.
I thought it might be useful to give just a brief background as to the position of the Committee on the constitution. The first report was really primarily released prior to our final report which will be coming out at the end of the year in order to make our position known on it. This is found in the third paragraph of the first page. It is one sentence. and there was considerable discussion about it. but that presents the unanimous position of the all-party committee. I believe it has already been read by Dr. Lang but it is only one sentence;
Should it be the will of Parliament to entrench human rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicaps.
I think it is important to point out that it would be unreasonable to conclude that if specific reference is not included that somehow the constitution will not cover disabled Canadians.
It is quite clear to me that it will cover everyone, but I think that our Committee was of the viewpoint that we wanted the clearest possible indication that disabled Canadians are in fact covered and all their rights are protected.
Now, I appreciate that there is some concern over the question of definition and what is reasonable. There has of course been legislative precedent in Canada in the Human Rights Act I am not aware of any difficulties that have been encountered in the interpretation the courts have given to the reference in the Human Rights Act concerning disabled Canadians.
I know that there is also the concern about, well. once specific reference is given to one minority group. does this open the Floodgates to all minority groups? I think it could be argued that the rationale that prompted the reference to disabled Canadians in the Human Rights Act would also exist in the case of the constitution.
Those are really the points that I wish to make. Mr. Chairman. I appreciate your definition problems but this is the position of the Committee and I wanted to reinforce the conclusions of the Committee.
The Joint Chairman (Senator Hays): Thank you very much Mr. Smith. And as Chairman of the Committee you might go back and tell your members that we will include the first report in the Proceedings.
Mr. Smith: Thank you.
The Joint Chairman (Senator Hays): Yes, Mr. Derksen?
Mr. Derksen: I would just like to introduce Monique Couillard, the delegate to COPO from Quebec who arrived late on the plane and had a wheelchair breakdown at the airport. She has not been able to participate in the discussion and I wanted to make certain that she was introduced as the other three of us were.
The Joint Chairman (Senator Hays): Yes. Thank you very much, and we are very, very pleased to hear from you.
This concludes the evidence and we should like very much to thank the Coalition of Provincial Organizations for the Handicapped and Mr. Peters, Mr. Kanary and Mr. Derksen. We appreciate your being here and Mrs. Couillard as well. Thank you very much.
Mr. Kanary: Thank you. Mr. Chairman.
The Joint Chairman (Mr. Joyal): Of course, I would like to join-our joint chairman in thanking our witnesses from the Coalition of Provincial Organizations for the Handicapped Although I had named you at the beginning of the hearing, Mrs. Couillard I have noted your accent, so I am very happy
to be able to welcome you and to tell you that we are very receptive to the representations we have heard from your fellow members of the COPOH.
Thank you very much
3. December 12, 1980
The Joint Chairman (Senator Hays): May I call the meeting to order.
We are honoured this morning to have with us the Canadian National Institute for the Blind, represented by Mr. Robert Mercer, Doctor Dayton Foreman, and Mr. David Lepofsky.
As you know, the procedure is that you would make an opening statement, then members should like to question you.
You may proceed.
Dr. Dayton Foreman (Vice-President, National Council. Canadian National Institute for the Blind): Mr. Chairman and members of the Senate, House of Commons Committee, as Vice-President of the Canadian National Institute for the Blind’s National Council, its volunteer Board of Directors, I am privileged to be, once again, a part of a group coming to assist in deliberations of this government and Parliament and also to field your questions.
Our group today consists of the fifth Managing Director of the Institute, Mr, Robert Mercer, who was appointed by National Council on September 1, 1980. He is the chief executive officer of this National Institute and will outline some concerns that he has.
Our third speaker is a fellow-volunteer, Mr. Lepofsky, who will speak on some points in our brief which have been submitted.
In advance, I would like to thank you for your time and hope we can answer some of the questions you will be asking.
The Joint Chairman (Senator Hays): Mr. Mercer.
Mr. Robert Mercer (Fifth Managing Director, Canadian National Institute for the Blind): Mr. Chairman, members of the Committee, the Canadian National Institute for the Blind was incorporated federally in 1918 with the dual purpose of providing services in this country to people who were blind as well as to prevent blindness in Canada.
We are a service agency, and as such we would like to make the point this morning that we do not profess to represent the views in Canada of all people who are blind, particularly on a major issue which will be addressed by Mr. Lepofsky a little later.
However, we would like to indicate that, as a service agency, working with blind people in this country, we are the largest and have a long history of involvement with blind people and generally with the community.
We have taken a great deal of time on this matter of human rights to listen carefully to what blind people have been saying and to what other handicapped people have said as well, and in putting forward our position this morning, we say, with some assurance. that what we have to say represents in fact the view of many people who are handicapped in this country, and we trust that this Committee will take most seriously the concerns that handicapped people have in this Canada in your later deliberations.
I would like to call on David Lepofsky, who is a member of the Ontario Division Board of Management of the Canadian National Institute for the Blind to present the position of CNIB on the subject of human rights.
The Joint Chairman (Senator Hays): Mr. Lepofsky.
Mr. David Lepofsky (Member, Ontario Division Board of Management, Canadian National Institute for the Blind): -Mr. Chairman, i would like to begin with my thanking you both as a volunteer member of CNIB Ontario Board and as a blind individual for this opportunity to speak to you on what is a crucial issue in our view.
I would indicate at the outset two things, the first of which is I believe all the members of the committee have a letter from the Committee addressed to me from the Ontario Federation of the Physically Handicapped, a federation of some 37 organizations which deal with various kinds of disabilities, a letter endorsing the position articulated in our written brief. I would ask in pursuance of what Mr. Mercer has just said, that this is indicative of the kind of support for all of you which exists amongst all kinds of disabled persons and not merely persons with a visual handicap.
I would ask at this time, Mr. Chairman, that in the spirit of the equality which we are promoting here, the clerk to pass around to the various members—if they prefer not to read our brief in print, they have the choice of reading it on a cassette or in braile; I would ask the clerk to pass them around, and I apologize that there will not be enough for absolutely everyone, but we would be pleased to provide you with extras if they are needed in the future.
The Joint Chairman (Senator Hays): Thank you very much; they are being passed around.
Mr. Lepofsky: As I say, it is demonstrative of our efforts towards equality and our concern about the equality of blind and other handicapped persons.
Mr. Chairman, to begin, I would like to mention a point which may come as a surprise to some. The biggest problem very often with being handicapped—and so far as CNIB are concerned—is not blindness or the handicap. Blindness, visual handicap or other kinds of disability, are frequently conditions which one can learn to adjust to through training, with which one can learn to cope and ultimately achieve some substantial, if not total, degree of independence, self sufficiency and self worth.
The biggest problem very often resulting from’ blindness or other handicap is the well intentioned cruelty which many members of the public unintentionally or unknowingly impose upon us. The pity the patronization, discriminatory attitudes and condescension which handicapped people know to be, unfortunately, almost nonstop components of their life, is in fact the biggest problem they face.
A handicapped person, in the case we are discussing today, namely that of a blind person, can learn through specific training to overcome the limitations imposed by their blindness, so that blindness no longer functions in most cases as “a handicap”; in fact it can become at times merely a marginal aspect of one’s life, compelling one to read in Braille rather than from prim or to use a guide dog or cane to get from point A to B, rather than using one’s eyes, but nonetheless accomplishing substantially the same things as a sighted person would.
Once one has achieved this degree of independence, however, the problem that is confronted by the majority of handicapped persons is the fact that the public is not often ready to accept us as equals, not by reason of malevolence, but because of uniformed or misinformed attitudes, underestimating our capabilities by fear of the handicapped person—you might call it the “freak syndrome”, not perceiving a handicapped person as just a normal human being. This is manifested in several ways, many of which are frightening and harmful.
Job discrimination against the disabled is something which the public are only now becoming conscious of; the fact that once you have learned to do a job, the fact that you are ready to go out into the market and be competitive, you will find the only barrier you have is not your blindness or other handicap, but the employer who cannot believe you can function.
Housing and other facilities a landlord may not be permitted to rent because a blind person might be considered a health hazard and people do not want to look at someone who has cerebral palsy because it might be somehow unpalatable to look at in the opinion of some.
Educational systems are accessible primarily to nondisabled persons, but only to a limited degree to disabled persons, and, of course, as we all know, most buildings are not accessible.
These are functions of an attitude that the world simply does not contain handicapped people or that those handicapped people are not going to be out there trying to get job, trying to get into housing or buildings.
Our concern is generally with this attitude, and CNIB as well as other organizations have taken many steps, both with public education and also lobbying, to change this. Where this kind of problem with attitudes becomes perhaps most frightening and most requiring of action, is something which is addressed in the Charter of Rights which is before you.
Handicapped people in the struggle for equality and equality of opportunity find that not only do people discriminate in the access to jobs, buildings, facilities, services and housing, but that, in fact, legislators, persons passing laws have also experienced the same negative attitudes towards the handicapped and have passed laws which are in fact discriminatory.
Accordingly, the major thrust of our presentation is that it is necessary that they should be included in Section 15 of the Charter of Rights, the so called equality or nondiscrimination clause, and be referred to as a protected class, mentally or physically handicapped persons.
We are not looking at this as a means of getting jobs or housing, because that is something which is done at the federal or provincial Human Rights Code level, and we are actually lobbying for that.
Here, we are concerned with not just human conduct which is discriminatory, but legislation which discriminates,
Why should we be included in Section 157 Why handicapped people entitled to equality before the law and to the equal protection of the law?
To begin with, I am sure you have all come to the conclusion yourselves and you have heard from other groups, as the clause is presently drafted it is unarguable, unquestionable that handicapped persons are not entitled to equality before the law.
By this exclusion, it perpetuates in our constitution and attitude which, as I have mentioned, is prevelant in society, some notion of handicapped people as second class citizens, people who need to be taken care of, not given independence, protected, not given the opportunity of equality.
Inclusion in Section 15 for the handicapped would be consistent with what is the stated intention of the government with respect to the Charter of Rights. I refer to a statement made by the Minister of External Affairs, Mr. Mark MacCvuigan, in speaking at a public forum on the constitution some weeks ago in Toronto, when I asked him about the handicapped issue. I-Ie had said that the Charter of Rights was central to the government’s package of reforms and that equality for all minorities is central to the Charter of Rights.
If that is the intention, then that intention is thwarted by the present proposed Section 15 because equality for all minorities is not provided. Equality for some is the rubric or the essence of Section 15 as it stands, and it is a respectful submission of the Canadian National Institute for the Blind that, if the intention of the government is to, in fact, give equality to all minorities and is, given the fact that there are some hundreds of thousands or millions of handicapped persons in Canada all told, there is a minority that requires protection. That is not disputed. So the government’s intention must only be manifested, it is our view, if we are included.
Moreover, if the purpose of the equality clause is truly to grant equality, one must look at its wording. It provides equality for certain minorities: in other words, it involves equality for some; and equality for some, I submit really means equality for none. It means that there are two levels in society, one level of people who are entitled to equality and one level who are not. And when you have two distinct classes such as that the term “equality” has been stripped of its meaning and rendered more of an illusion.
Accordingly, if equality is the goal, then it must be equality for all and “all” must include, we submit, handicapped. Now, as I said previously, Mr. MacGuigan in his statement, in answer to certain questions I put to him about the handicapped issue, acknowledged that the handicapped are not
included and raised the question whether handicapped people need protection in a bill of rights, whether they need egalitarian liberties. His statement was that what the handicapped need are jobs and access to buildings, and these are economic not political or egalitarian liberties, and are not the kinds of things that are required in a constitution.
Now, in a world that was not our own, where economic liberties were generally being entrenched, I would be prepared to address issues such as jobs and architectural access in the constitution; but we are not going to address that today because we recognize the constraints under which Canada and the Parliament are operating. However, I would like to address the statement that Mr. MacGuigan made, speaking at that time on behalf of the government on the constitution. He said that what handicapped people need is not constitutional protection for equality, and it is our submission that Mr. MacGuigan’s view is inaccurate. In fact, when I pointed out certain things that I am about to point out to you, he explained that he had never heard of them before and would probably need to rethink the whole issue.
Legislation, as I said, in many instances discriminates against the disabled. You have heard this before but I believe that we will be the first handicapped group that will in fact itemize examples. Many statutes across Canada, both federally and provincially, which provide that everyone is entitled to a minimum wage when they are in the employment situation provide exemptions for handicapped persons. That is discrimination under or in law with respect to a legal right to a certain minimum wage.
Certain statutes explain when that right is to be administered and when not; certain do not. They merely say that the government has or a Minister has the power to give a licence to allow an employer to pay less than minimum wage, without giving reasons. This is not equality, this is discrimination, in our view.
Many statutes across Canada dealing with eligibility to sit on juries exclude bling persons from the right to serve on juries. Now, there are times when vision may be needed to serve as a juror. It is not our view that every trial should always be open for a blind person to sit on a jury; however, there are, and as a law student and soon to be a lawyer, I can speak with some limited knowledge of this, there are many cases where vision is not necessary and probably the lack of vision may be of benefit to a juror. So, legislation which just blanketly excludes blind persons without reference to their ability or inability to function as a juror, is discriminatory. The marriage legislation in Ontario provides in Section 7 that a marriage licence cannot be granted to someone who is mentally defective. It does not refer to whether their mental limitation is so serious that it would impede their ability to understand or consent to a marriage agreement. It merely excludes someone who is mentally defective from the right to be married. Such, in our submission, is discriminatory.
The Family Benefits Act in Ontario, a piece of welfare legislation, provides in one section that certain handicapped persons who are in institutions and entitled to certain welfare payments may, by executive order, have those payments paid to a civil servant, a director of the institution or whatever—I do not have the details here, unfortunately—rather than to the handicapped persons themselves. It does not ever require that a handicapped person’s right to receive welfare can be impeded only if that person is incapable of managing their own affairs. It merely says any handicapped person, so that if it is a person who is perfectly capable of handling that money capably, nonetheless their right can be taken away by executive action, perfectly legally under a statute of the province of Ontario. Such is legislation which discriminates.
The Education Act in Ontario, Mr. Chairman, provides that a handicapped person, whether physically or mentally handicapped, can be excluded from the right to go to their local elementary school if they are “incapable of profiting by instruction.” And then a separate school system is established to deal with those situations. Now education is a big and serious issue and I do not intend to address it in its totality here but I think it is fair to say that a provision that says that only where handicapped people cannot profit from instruction, only those people are excluded from the right to go to their local schools. If it is a nonhandicapped person who for some other reason is incapable of profiting from instruction, the statue does not exclude them from the right to go to their local shools. Such is unequalltreatment; such is discriminatory, at least prima facie, in our submission.
Other legislation, and I will only deal with other legislation briefly, British Columbia schools legislation, Section 107 (5) provides, Mr. Chairman, in certain circumstances that an employee of a board of education who is totally and permanently disabled—and I could not find a definition in the act of that term—cannot be hired by the board until they lose their disability. Now, certain disabled persons cannot function in a teaching environment but others can. So such a blanket exemption, if applied against any person with any disability, would be, in fact, discriminatory; and I bring to your attention that blind persons are functioning both in Canada and the United States in the teaching profession.
I am not sure if that act would include blind people within their definition of total and permanent disability, but there is the risk, and that is discriminatory legislation with which we are concerned.
The Immigration Act passed by the government some couple of years ago in Section 19(1) provides a higher burden on a handicapped person who proposes to immigrate to Canada. If that handicapped person can meet all the requirements required of a non-handicapped person, able to support themselves, finding a job, et cetera, et cetera, they still must prove to a medical officer that they will not be an excessive demand on health and social services. There is not requirement that other persons wanting to immigrate have to prove that they will not provide such a demand on health and social services. Such separate treatment not applied to all immigrants is discriminatory in our view.
I would submit that there are other laws that do discriminate but I think that these are sufficiently ilustrative to respond to the suggestion that we need no constitutional protection, the legislatures can take care of it themselves. This is evidence of how the legislatures have taken care of handicapped rights to equality and moreover, Mr. Chairman, I think that it rebutts the suggestion made by Mr. MacGuigan a couple of weeks ago in response to my question, that handicapped people simply need rights to jobs; they can be provided by statues, they do not need constitutional rights.
Moving on, Mr. Chairman, I would say that there are other reasons why we need to be included in the clause providing for equality. We are a substantial minority. We are not talking about a very small number of people. We have 30,000 clients registered at CNIB and Dr. Foremen can provide you with information of how many other visually handicapped people, as well as other handicapped people, may well be out in the community. Some have suggested that there are one in ten persons in Canada handicapped in some way and therefore would benefit from the kind of constitutional protection we are talking about.
There are a couple of arguments that have been raised primarily by spokesmen for the government—in one instance, I think it is the Minister of Justice, Mr. Chrétien—against handicapped inclusion. One argument that he made is that we should not include it now because it is hard to define the term handicapped. We should wait until we can come up with a definition and put it in through an amending formula. Well, with respect to the Minister of Justice, I do not believe that position is tenable.
Firstly, if this Committee requires information on how to define handicapped, having looked over most Canadian statutes that contain the word and have various definitions over the past few days, I have found that some statutes do not even bother defining it but those that do have been able to effectively, and having done some research on this particular issue myself, I am more than happy to supply you with information to show that definition of handicapped would be no problem.
Secondly, leaving it to an amending formula is not a realistic proposition, because the process of amendment which requires a lot of lobbying, a lot of time, a lot of money, would not be in our view, probably manageable by handicapped persons being for the most part served by not altogether wealthy, non-profit organizations who live off of charity donations in many cases, and handicapped people themselves often living at or below the poverty line.
So the amendment process will simply not be open to us as a practical matter, I submit. But more importantly, definitional arguments I do not think are persuasive in saying that handicapped persons not be included. Many terms are included, both in this Charter of Rights as proposed and in the British North America Act, 1867, which are much more vague than is the word handicapped, or mental or physical handicap. We note that in Section 15 they refer to discrimination on the grounds of religion. Mr. Chairman, I would invite anyone to define what religion means in a comprehensive manner. I think that that term, while we know that certain religions, Judaism, Christianity, Buddhism are religions, there will be many borderline cases where we do not know if those groups are religions or not. But that has not precluded the drafters of this Charter form including religion.
You will note in the British North America Act that under Section 91, criminal law is given to the federal government. We have had 100 years of litigation over what criminal law means in the constitution but that never stopped the framers of the BNA Act from including the words “criminal law” within that constitutional document.
And finally, in Section I, of the proposed Charter, the words “reasonable limits” are used, which I would submit are incredibly harder to define, if ot impossible to define, than are the words “mental or physical handicap”. Accordingly, I do not think one can simply avoid the issue or duck the issue because of definitional problems.
The final reason that I would like to articulate for including handicapped in Section 15 concerns an argument that some have raised against it: namely, that the costs occasioned by including the handicapped would be excessive. I have several responses to that argument.
Number one, I would ask what those costs would be. I am not altogether clear and I would submit that there probably are not that many. Intuitively nothing really comes to mind as being excessively costly.
Secondly, I would submit that unless this Committee is going to go through the process of looking at every liberty enumerated in the Charter of Rights and say how much will this one cost, should we include it, is it too expensive?
Unless we are to do that with every single liberty then there is a certain inequality to simply looking at one group, namely the handicapped, and say that they will be excluded on the basis of a cost argument. And so, if that argument is presented before this Committee, I would ask that your bear that in mind. And finally, if that argument is presented before this Committee, that is that including handicapped would be too costly, I would ask you to bear the following argument in mind, or the following point in mind.
To say that the cost is too excessive is to assume that handicap inclusion is the absolute lowest priority of every government in Canada, that we have spent every last dollar of revenue we have taxed and collected and that there is no money left. If you were to look at the priorities of the various governments, provincial and federal, of spending, you might find that there are others that are lower priority than handicapped equality and you might find that it might be worth including the handicapped in the constitution and perhaps let some more inconsequential programs go by the board.
I do not think it is fair to simply say it costs too much, therefore we cannot do it.
Moving very quickly through the other points of ours, because the other points we have made are ones which other groups have made as well, we recommend not only that handicapped be included in the Charter, Section 15, but we would prefer it if the Charter read something like equality before the law without unreasonable discrimination or without unreasonable distinction. Unreasonable discrimination meaning without restricting the generality of the foregoing, and then you can put a list of protected classes and include mental or physical handicap.
The reason we suggest this is because if an equality clause is truly to give us equality, it must give us equality with all others. And that is the way to do it.
It has been suggested before this Committee that perhaps it would be best to simply say equality before the law without discrimination, period, no reference to a list of protected classes. Now, that would be preferable to what is proposed in the present bill, but in our view, it is not desirable for the following reasons.
Firstly, it would mean the some thousands and thousands of dollars would be required going to court, appealing up to the Supreme Court of Canada, in order to get a precedent that decides whether handicapped is a class protected by the clause. To avoid that kind of cost, delay and uncertainty, it could be easily included now without any such costs.
And secondly, Mr. Chairman, the fact of the matter is, if we have to go to court and argue it, there is no guarantee that we will be included by the courts. The courts take a very restrictive view of civil liberties in general, and handicapped civil liberties is a new area in Canadian law and therefore the risk is that we may never get in, even after an appeal process. So the only way of guaranteeing our rights is by including us.
Briefly, Mr. Chairman, we recommend, as is mentioned in our brief, that the words “euality before the law” and “equal protection of the law” are far too weak a means of protecting egalitarian liberties. You have heard this from other groups and we endorse the views that have been presented namely that the courts under the present bill have interpreted those words to not provide egalitarian liberties, and they have done it in an unequivocal way. And these words, even though there is one word that is different, these words are far too close, far too close to the existing Bill of Rights to ensure anyone that the courts will use this as a strong lever to nullify discriminatory laws. It is our concern that, once again the same amendment argument goes, if we get bad precedent, we have to go through the amending process, and we have seen in the State with the ERA battle how many years and at what cost that fight is and that there is no certainty of success.
More importantly, it is our view that the courts have a tradition of taking a very restrictive view of civil liberties. Now, that is not by way of criticism or by way of anything less than respect for the members of the judiciary, but it is something which is, nonetheless, true, I think that it will be necessary and it is our submission that it will be necessary for strong direction to be given to the courts through very specific wording directing them to invalidate discriminatory legislation.
Moving to the end of my presentation, Mr. Chairman, it is our submission, as you will see in our brief, that Section I should not govern either Section 14 or Section 15. It is our view that there should be no circumstances where the right to an interpreter, which a deaf, blind or just a deaf person may require in court, should ever be taken away. Why is it either in war or emergency that a deaf-blind person on trial should be denied an interpreter to know what the case is against them. It is too basic and a denial of natural justice.
Moreover when should unwarranted discrimination be permitted? At wartime? At peacetime? In the case of an emergency? It is hard to imagine a situation where it is justifiable, and therefore we have recommended, as have other groups, that Section 14 and Section 15 be absolute rights, rights not subject to Section 1.
Alternatively, if that point of view is not acceptable to the Committee, it is our submission that the wording in Section I is far, far too broad. You have heard all the arguments before, we can only reiterate them, that Section 1—labelled by some as the Mack truck provision—will in fact make the rest of the Charter of Rights a virtually worthless and impotent means of protecting civil liberties,
In particular, the generally accepted view of the public with respect to handicapped persons is that they are often not capable of taking care of themselves, not capable of maintaining a job, not capable of self-sufficiency, and therefore the kinds of laws that I have discussed previously that are discriminatory would be under Section I generally accepted in a free and democratic society, passed by these kinds of Parliaments. And accordingly, if Section 1 remains, and if Section 15 is still subject to it, it is our view that Section 1 must be very narrowly constrained to protect minority rights and in particular, handicapped rights.
Finally it is our submission that Section 29, (2) which provides that the equality clause will go into effect later than all other parts of the bill should be repealled, simply because there is no good reason in our view why egalitarian liberties should be delayed. If anything, they should be accelerated.
In conclusion, I would like to make the following points. Our concern is that there is a danger of misleading people if the Charter does not include the handicapped. There is the danger that people will believe that in Canada under such a provision, egalitarian liberties are truly safeguarded, there is equality for all, Without handicapped inclusion such is not the case. And it is not only unfair to handicapped persons to deny them equality, but it is a risky venture for the public to be misled into believing that all minorities are protected when they are in fact not.
Our concern, as I said at the outset, is dealing with public attitudes. Public attitudes are something which we must battle at various levels. At the constitutional level we are battling public attitudes as they are manifested through legislation and this is a battle which is both serious and crucial.
Finally I would close by saying that there is an oft stated adage thatjustice is blind; in fact it is a cliché.
Our concern—and the underlying concern of this presentation—is that while justice may have had the opportunity to experience blindness, we are asking for blind persons, as well as for other handicapped persons, to be given at last an opportunity to experience justice.
The Joint Chairman (Senator Hays) Thank you very much, Mr. Lepofsky.
Inasmuch as Mr. Lepofsky and his group have given us a thorough understanding of their brief, we have a few minutes left.
We have another group scheduled to be here at l0.l5 this morning and the House sits at 11 o’clock, I am wondering if I could have some agreement that we have three questions on it and that we could probably terminate at 10:20 or 10:25 and have our time as five minutes rather than the 10-minute round?
Mr. Epp: Mr. Chairman, I was going to make the recommendation and Mr. Lepofsky has been excellent in the presentation and on this topic; and there are just two points: one, he kindly offered us to make information available re definition of the handicapped. I hope I have stated that correctly, But I would ask the Committee to request of Mr. Lepofsky that he make that information available to us, though it does not necessarily have to be appended to the minutes of this hearing, but that the information be circulated.
Secondly, I would recommend, Mr. Chairman, instead of the 10 minute-round for the witnesses this morning, that you reduce it to five minutes, and if there are any questions after that first round we will leave that with the Chair.
The Joint Chairman (Senator Hays): Thank you very much. Is that agreed?
Some hon. Members: Agreed.
The Joint Chairman (Senator Hays): I see that is agreed.
Senator Donahoe: Thank you, Mr. Chairman.
Gentlemen, I am very happy that good fortune presented me this morning with the opportunity of sitting in on this Committee as a substiute for one of the regular members, because I am very pleased to have had the opportunity of hearing the very excellent presentation made by Mr. Lepofsky.
I was interested to hear the illustration that was given of discrimination possibly against an unsighted juror, because in my experience as an Attorney General for many years, I was once faced with the application for appointment as a Crown Prosecutor by a blind person.
He was an excellent lawyer, a good student and so on; but he was asking to be made a Crown prosecutor to conduct criminal prosecutions.
I would ask you to believe that it was a matter of real difficulty for me to determine whether or not that handicap, in fact, was of a nature which detracted from his ability to do the fullest and most complete job in that particular capacity.
I want to say that I did, in fact, appoint the gentlemen and that he conducted himself with great credit for a number of years.
But I wonder if the person who suffers the handicap can appreciate the difficulty that a person in the position in which I was at that time might have had in determining whether they are in fact discriminating against that person because of the handicap or whether they are in fact merely endeavouring to see that their obligations and responsibilities are discharged in the best possible manner.
However, I do not wish to say or to ask too much, because I think your presentation was, indeed, excellent and from the point of view of the organziation for which you are speaking and the people whom it represents, it has been exceedingly well put here this morning.
I would like to ask this simple question. Do you believe that the position of the handicapped will be substantially improved or enhanced if this procedure is followed? The procedure that is suggested is to entrench certain rights.
You have indicated that you find the suggestions inadequate, insufficient and in need of substantial amendment, and that those amendments should be specifically directed towards the class of person for whom you are speaking here this morning.
Do you feel that the position of the handicapped is going to be very much improved and very much enhanced if this procedure is followed with or without your suggested amendments?
Mr. Lepofsky: Mr. Chairman, to answer both your points, understanding the fact that an employer or service must go through a very difficult analysis and thought process to decide what one is capable of, is something which is only too well understood by any handicapped person, because before someone like myself decided to go into law school I had to make that same analysis.
So it is something which not only I have thought about, but i would think about it before any of my potential employers have thought about it.
it is a very difficult process. The equality clause, if it included the disabled, would give us a right, in the instance where a legislature had gone through that thought process and in fact had made a wrong decision in the passage of laws which end up discriminating, would give us a right to appeal that to the court and to argue that it is an unreasonable distinction which is being drawn against handicapped persons.
My first point would be, Mr. Chairman, that this would provide a means or mechanism for handicapped persons and other interested groups, to challenge legislation which is discriminatory. If these provisions are not put in, then it would signal to the disabled that it is the prevailing view in Canada that handicapped people are not entitled to equality before the law and that the kinds of discrimination that are experienced by any handicapped person in their every day life are in fact representing a pervasive view which in fact has been articulated through the actions of the framers of the new constitution.
On the other hand, if this provision is included as we have proposed, several benefits would accrue, l would submit. The first is that next year being the International Year of the Disabled Person, it would show Canada as doing what could be the best possible move to ensure disabled persons equality, which is to pass a constitution enshrining their rights; secondly, it would be a signal to the Canadian people that as regards handicapped persons, who in the past have either been a forgotten minority or a lesser class of citizen—and I say this was not intentional or out of malevolence; but it has happened nonetheless—that a new era has dawned and that as deeply felt a concern is being presented to Canada as can be expressed through a Charter of fundamental rights as acknowledging this liberty.
As I say, some of the more odious legislation, some of which I have already enumerated, would be amenable to attack. I know that certain lobbying has succeeded in Ontario, and lobbying by certain groups have inspired the Ontario legislature, after I00 years of having similar legislation to finally change it, and it is now about to get the Royal Assent, but the process of getting the reform has taken a long time. Had we an equality clause we could have had it adjudicated upon and probably won the matter possibly much more quickly. It was only, frankly, out of luck, that in our view this amendment ever came through.
The Joint Chairman (Senator Hays): Thank you very much.
We have Mr. Althouse followed by Senator Connolly.
Mr. Althouse: Thank you, Mr. Joint Chairman.
Other evidence seems to suggest that the disabled and handicapped people suffer an unemployment rate of between 70 per cent and 80 per cent. I note in your remarks this morning that you mentioned employers who do not believe you can function as one of the big handicaps you are facing.
Is that the greatest difficulty faced by blind people, for instance, access to opportunity to function? Will the proposed amendment encourage this access to opportunity in your opinion?
Mr. Lepofsky: I would agree that the access to jobs and other facilities is perhaps the greatest problem. As I said, it is the attitude to the public that is the greatest problem and perhaps is the worst manifestation of it, aside from the other manifestation I have mentioned, namely the legislative discrimination.
Our proposals would not require employers to hire a handicapped person who can do the job. That is something which is dealt with by the Human Rights Code. I would say that we are involved in lobbying along with many other organizations for amendments to such laws. I am personally involved in that and could give you a lot of information on the subject if necessary.
It would, however, have two beneficial effects on the employment situation. The first is that, by entrenching this in a charter of rights, as I have said before, it would be a signal to the Canadian public that handicapped people are entitled to equality. That is an educational effect which would be of profound importance and help.
Secondly, there is the possibility and I did not mention this in my list of discriminatory legislation, because a good law student is told that you should use your weakest argument at the end or drop them altogether; but the federal Human Rights Code provides protection for the handicapped in the area of employment, but does not refer to them in the area of access to services or goods. I would say that is a form of discrimination. As you know, the Canadian Human Rights Commission has recommended amendments to cover that.
I would be interested to know if we could build a case that we are getting unequal treatment under the Human Rights Code, since in certain provinces we are not included at all in the code, and in other provinces we are only given partial protection.
But that is a case as to which, while I would like to argue it personally, I am not overwhelmed by the fact that it would be successful. But the most important point is the educational effect on the public and that laws which are a barrier to education, a barrier to equal opportunity, and signals second- class citizenship for the handicapped to the public, would be attackable by us.
Mr. Althouse: In this regard, the slow movement towards access to jobs and equal access to buildings and services, I note one of the supporting groups, the Federation of the Physically Handicapped for Ontario, has mentioned in supporting documents which were passed out along with your brief, that Section 29, they make the point—in the proposal before us places a restriction on the implementation of such rights; under Section 29 it is stated that there will be a three-year waiting period, and they would not come into effect any sooner than the amending formula.
What is the reaction of your group to this waiting period? Your group of handicapped individuals seem to be the only group that have been singled out for this by subsection (2).
Mr. Lepofsky: I would say it is a concern of ours. The delay, if anything, is undesirable; and we would prefer to have seen an equality provision protecting us in effect ten years ago. However, I am bound to confess it is not our major concern. Our principle concern is getting into the bill in one form or another at all.
The Joint Chairman (Senator Hays): Thank you very much.
Senator Connolly: Thank you, Mr. Chairman.
First of all, we are all very happy indeed to have the CNIB here, because over the years this organization has done a tremendous amount, and I think perhaps the witnesses might agree that the important feature of that work is the fact that they have helped so much to promote the integration particularly of blind people into the community, into society and all phases of Canadian life. This is a great achievement on the part of the CNIB and of the people who work with them.
But may I also, on a personal basis, congratulate Mr. Lepofsky for the very lucid, very comprehensive statement that he has made. I predict that he is going to be a very good lawyer. I would hope that he might become a member of Parliament, but I would tell him immediately that he will not be the first person who is without sight who has been in the House of Commons. I do not say that as a joke. There are lots there who perhaps physically see, but perhaps mentally do not. That does not, of course, apply to the Senate. We have had people without sight in Parliament: Trevor Morgan was here in the early 1970’s on the Conservative side.
The Joint Chairman (Senator Hays): Senator Connolly, I think Doctor Foreman would like to ask you a question.
Mr. Foreman: I was just going to thank the Senator for his kind remarks about the Institute and about Mr. Lepofsky. I would also like to thank the Committee from the point of view of letting my guide dog in.
Senator Connolly: Good, good. I think I can remember a man—I believe his name was Estey or something of that nature, but whatever his name was, I think he may have be the first in Parliament, this man whose name escapes me; and for this I apologize. There is a great story of an exchange between Mackenzie King, R. B. Bennett and this man at one time over the Doukhobors—one of the great stories on the record of Parliament.
But I would like to ask Mr. Lepofsky this. You have been talking, and the other groups which have represented the handicapped have also been talking, about the importance of integrating the handicapped community into the normal stream of public life.
I think great strides have been made as education has advanced, and as public education in this respect has improved. I do not ask you this as a trick question, but I wonder whether, by segregating the handicapped you are not, to use your own words, signalling to the disabled that they are forever a segregated group?
Would your position not be stronger before the law, even before these provincial laws which you have criticized here, if a nondiscriminatory clause applied equally to you, whether you are handicapped, equally to me, whether I do not happen to be physically handicapped, maybe mentally and so on; but would it not be better in the long run not to have a special category set out in a constitution which, presumably, is to last for a very long time?
Mr. Lepofsky: I can answer that question, Mr. Chairman, briefly. First, I thank you for your compliments with respect to my potential future in Parliament; but my immediate concern, perhaps a little myopic, is that I have another four bar examinations to write and I will continue to be a law student for a lot longer.
On the question of integration generally, I must say, particularly under the leadership of the new management of the CNIB with Mr. Mercer, among other things, CNIB as well as other organizations are becoming much more active in adopting integration of handicapped people into society as a goal, phasing down and phasing out segregationist programming and lobbying for equal rights legislation; this is demonstrative of our kind of work.
While there has been segregation, in fact somewhat imposed by handicapped organizations over the years, this is something which is changing, and I would say that the three gentlemen in front of you representing the CNIB are hoping and striving to see that change continue and accelerate.
As to whether it is somewhat discriminatory or special treatment to mention us expressly in the equality clause, I have two answers or brief points to make to that. First, is that, as 1 have mentioned in my general remarks, if you do not put us in expressly, and merely say equality before the law without discrimination period; then, you are leaving it to us to have to litigate and go to court and spend thousands of dollars and try our luck.
First of all, I do not think we could afford it too readily, and secondly, we are at risk that we would lose. Frankly, having read a good deal of civil liberties case law, which is a particular area of law which interests me, in Canada our courts have a restrictive or very narrow approach to the treatment of civil liberties and only enforce them, as evidenced by the treatment of the 1960 Bill of Rights, when there is no way out: and even then they do not.
So that my concern is that we may well not win such a case, no matter what the intention is of the Senate, no matter what the intention is of the House of Commons in passing this bill. The only way we could be sure to be in, speaking from a legal point of view, is to put us in. Saves us money and improves our chances.
The Joint Chairman (Senator Hays): Thank you very much, Mr. Lepofsky.
At this time I would like to thank you on behalf of the Committee. Mr. Mercer, Dr. Foreman, I want you to know that your dog is most welcome in here. I was going to say something and I thought bketter of it after. I have great respect for dogs.
In your brief you have raised some problems that I am sure none of the Committee had heard before, at least I had not, and we appreciate your being here.
Thank you very much.
Mr. Lepofsky: Thank you.
The Joint Chairman (Senator Hays): Mr. Mercer, did you have something you wished to say?
Mr. Mercer: Yes, Mr. Chairman.
I know that our president, Mr. Dick Smith from Winnipeg, would like me to express thanks and appreciation from CNIB for all of you today for taking the time to listen to our point of view, so thank you very much.
The Joint Chairman (Senator Hays): Thank you.