Week 3 – January 22, 2014
Section 15 – Equality Rights (2)
Readings – David Baker 3977 & Yvonne Peters 63143 Cases – Eaton v. Education & Eldrige v. B.C
HISTORY OF THE DISABILITY RIGHTS MOVEMENT IN CANADA
Good overview of events found at http://disabilityrights.freeculture.ca/exhibits_th_c.php
The 1970s represents an era of social change in Canada, marginalized seeking empowerment to effect social and legal changes
A predominant view in society projected persons with disabilities as dependent on charity.
In the 1970s, people with disabilities began to organize. Demanding that their rightful role in Canadian society as equal and active participants.
people with disabilities began to mobilize and enforece their rights to prove that they have full rights as citizens as well because they were marginalized
and hidden from society and the work force. They wanted a rightful role to participate in Canadian society.
1970’s and 80’s significant events impacted the Disability Rights Movement in Canada
Canadian Human Rights Act passed in 197677 gave persons with disabilities the same rights as all other Canadians.
Influence of the American Disability Rights Movement – ADA
Formation of the Coalition of Provincial Organizations of the Handicapped (COPOH)
1981 International Year of Disabled Persons – all people with disabilities had the right to full and equal participation in society and the objective
of this year was to promote public awareness of people with disabilities.
Obstacles Report –Federal Special Committee on the Disabled and the Handicapped
There was a large federal committee on disabled and handicapped which was an extensive study done across Canada about the barriers and obstacles that
disabled people faced and why they were not engaged in the community because of these barriers. 130 recommendations came from this committee and
promoted integration of people with disabilities. Part of the thinking that developed from this is called the social model of disability which is the barriers
created in society that create problems for the disabled people. Ex. Its not the fact that they use a wheel chair it’s the fact that places don’t offer wheel chair
ramps for disabled.
Development of Canadian Charter of Rights and Freedoms
When the first drafts of the Charter of were released in 1980, Section 15 did not protect against discrimination on the basis of disability.
Organizations, individuals, and some government officials began lobbying the government for the inclusion of rights of persons with disabilities
Fear that if disability were included in the Charter it would mean extreme spending by governments would be needed
the Canadian charter included the right to be treated equally under the law and set out protected grounds such as race, sex, gender, etc. the original
drafting of the charter did not include disability as a protected ground and the reasoning the govt gave was that they felt that including disability as a
protected ground that everyone would have to change and every building would have to change to accommodate disabled people. They felt to much would
have to change to incorporate this protective ground for disabled people. There was a lot of resistance and talk between govt committees and a large group
of disabled people mobilized themselves and arrived at parliament and made demands to include disability as an equality right.
On Wednesday January 28, 1981, representatives from various disability organizations were at the hearing of the Joint Committee on the Charter
Justice Minister Jean Chretien made the announcement. Disability was included as a protected ground
EVOLUTION OF DISABILITY UNDER THE CHARTER
INFLUENCE OF HUMAN RIGHT CASES Direct v. Adverse Effects
In early Human Rights cases onus was on claimant to prove that the discrimination was intentional
In 1985, SCC ruled unanimously that human rights law included both intentional and unintentional ("adverse effect" or "adverse impact“) discrimination:
The intent to discriminate is not a governing factor in construing human rights legislation aimed at eliminating discrimination. Rather, it is the result or effect
of the alleged discriminatory action that is significant
•Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
Purpose and Meaning of 15(1):
•To promote equal concern, respect and consideration for human dignity
•Aimed at ameliorating stereotypes and preventing stereotyping and historical disadvantage and political and social prejudice.
•Promote a society in which all persons enjoy equal recognition at law as human beings equally capable and equally deserving of concern, respect and
Meaning of 15(1):
Not FORMAL EQUALITY – treating all people the same regardless of difference
Not SEPARATE BUT EQUAL – can be receiving services in separate facilities as long as service levels are equal
Ex. Segregated school that treats children differently from other schools.
Meaning of 15(1):
•Respect for and consideration of the differences in people
•Accommodation of the differences in order to provide equal access
Rather than forcing people to fit into the “normal”
peoples differences need to be respected for them to have full and equal benefit of the law and protection and this difference provides you with equal
access. Everyone doesn’t fit into the normal but the normal has to change to allow people to full participate. Sometimes we have presumptions of people
instead of knowing how we are going to change the norms. Ex. Govt services that treats everyone equally but you may need something in addition to fully
Emily Eaton v. Brant County Bd of Ed (SCC 1997)
•First 3 years of school in fully integrated setting
•School decided remaining in integrated “not in Emily’s best interests”
•Education Tribunal agreed stating that by “insisting on having Emily in school with her peers, her parents were treating her as a symbol not a person”
•Ont Court of Appeal found that segregation did violate Emily’s Charter Rights
“from earliest age children with disabilities should see themselves as part of society and children without disabilities should see them the same way”
one of the first cases that ARCH was involved in which was a student with disability. Emily Eaton v. Brant County Bd of Ed (SCC 1997)
Case was then appealed to the SCC from court of appeal.
They found that it did not violate her charter rights and this segregation did not burden or disadvantage the student.
It was better for her to be in a classroom that was suited to her needs.
Both Negative and Positive outcomes from SCC decision
•SCC agreed that segregated setting did not violate Emily’s rights:
Segregation can be both protective of equality or can violate equality depending on circumstances and person’s disability
Segregation did not burden or disadvantage Emily
Positive? SCC stated:
•Purpose of 15(1) to prevent discrimination caused by prejudices and stereotypes
•Must address the disadvantage caused by a society based solely on mainstream attributes to which disabled persons will never be able to gain access
•Must breakdown the structures and assumptions that result in the relegation and banishment of disabled persons from participation
•Only when the integrated setting cannot be adapted to meet the special needs of an exceptional child will a placement outside of this setting be required
Emily fought on. She switched to Catholic Board and remained integrated in class with her peers through all
her school years.
In 2010, Emily and her family entered China’s Forbidden City step by step despite a declaration from their tour guide that it would be impossible”.
Eldridge v. British Columbia (SCC 1997)
•A hospital in B.C. had refused to provide sign language interpreter to allow patient with hearing disability to communicate effectively with health care
Courts below had found that:
•BC Medical Services Plan was not discriminatory because it treated all those who received medical services the same
•Sign language interpretation was not a medically necessary service
Deaf woman was in a medical crisis due to pregnancy and at arrival at the hospital she communicated in sign language and they had no interpreter so she
could not discuss anything with any doctor. She brought a charter case to have equal rights to medical care and a sign language interpretor.
Appealed to SCC and they disagreed:
•Failure to provide sign language created adverse effect discrimination, she could not discuss or understand her medical professional or understand what
was even going on during her medical emergency. Communicating to health care provider is an essential service and not being able to do so is an inequality
against deaf people.
•Effective communication was an essential component in the receipt of health care services
•Government had obligation to ensure that all had equal access to the services
SCC recognized that the historical disadvantage experienced by persons with disabilities is an important aspect of a s. 15 contextual analysis:
•Disadvantage has been perpetuated by the notion that disability is an abnormality or flaw.
•Not afforded the "equal concern, respect and consideration"
Subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able bodied
norms. The disadvantages that people with disabilities experience is known in society as an abnormality and it is not acknowledged that society needs to
accommodate them rather they are expect