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The UN Convention on the Rights of Persons with Disabilities - Are we making progress?

As many of you know, a few years ago Canada signed on to, and ratified, the UN Convention on the Rights of Persons with Disabilities -- abbreviated as the CRPD or the UNCRPD. The purpose of the UNCRPD has been described as follows: "To promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity." It has been seen by some to be something of a watershed moment, giving international and legal recognition to what is often referred to as the social model of disability -- the notion that people with disabilities are not hampered by their disability, but rather by the social construction in which they live which does not adequately accommodate their differences. Moreover, the Convention attempts to move away from conceptualizing those with disabilities as something to be taken care of, and to recognize that they are unique individuals who have things to contribute to the greater society. That, in a nutshell, is the premise of the Convention.

The question thus becomes: How well has Canada implemented the Convention, and to what extent has it lived up to the theoretical ideals of the Convention?

Under the Convention, Canada is required to provide routine reports to the UN Committee on the Convention and implementation progress. The first such report has been released by the Government of Canada, although it is likely to be a few years before the UN Committee reviewing these reports actually gets to Canada's. A complete copy of the report has been posted by the Council of Canadians with Disabilities. Read the report here! (or download the report as a PDF document.)

Below are a few of my initial thoughts on Canada's report, and how accurately it reflects, or does not reflect, the lived reality for persons with disabilities in Canada. This is not a comprehensive review of the report, and focuses only on the national section of the report at that, but we must begin the discussion somewhere.

These are my own personal thoughts and do not necessarily reflect any formal submission that AEBC may one day make with respect to the UNCRPD report.

Access to legal recourse (para. 12 of the report)

Paragraph 12 of Canada's report states:

[12] Persons with disabilities can bring a claim before F-P/T independent administrative tribunals, human rights commissions and tribunals or courts to enforce their rights. This has resulted in developments in Canadian law, for example, through decisions upholding the equal rights of persons with disabilities to health care services, education, transportation and accessible federal government websites for persons with visual impairments.

While it is true that many decisions have been made over the years by tribunals, panels, and courts that have improved the situation for persons with disabilities, it is hardly in the spirit of the CRPD to champion this as a "positive". The purpose of the CRPD is not simply to provide people with disabilities with another hammer to use when hitting government and society over the head about the lack of accommodation and accessibility that they face in their everyday activities.

Canada had that with the Charter, Canada had that with the Bill of Rights, Canada had that with the existing F-P/T legislation. The CRPD is intended to put the onus on government to take affirmative steps to further the inclusion and participation of persons with disabilities in Canadian society.

Moreover, the right to wield this particular axe is just that -- a right. But what there is not a right to, necessarily, is legal or other assistance in actually carrying the axe forward and chopping with it. Yes, there are tribunals, courts, and other bodies that complaints can be made to, but few people with disabilities have the know-how, stamina, passion, or in some cases even legal capacity to represent themselves before such bodies. The Canadian government dispensed with the very funding program, the Court Challenges Program, which made cases like the Jodhan decision (which the government cites at footnote 10) possible in the first place.

Finally, one must be careful about the implied assertion that the Canadian courts and tribunals are available to address complaints or concerns arising from Canada's failure to fully implement the CRPD itself. Courts and tribunals often minimize the impact of international treaties, viewing them as helpful for the sake of interpretation but not necessarily binding absent the enactment of clear domestic legislation: see, for example, BS (Re), 2011 CanLII 26315 (ON CCB); R. v. Ahani, 2002 CanLII 49624 (ON SC) at para. 19: "While Canadian courts often look to international law when seeking the meaning of the Canadian Constitution, it is beyond dispute that international treaties and conventions are not part of Canadian law, and international treaty norms are not binding in Canada, unless they have been incorporated into Canadian law by enactment: see Baker v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at p. 860, 174 D.L.R. (4th) 193, and Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 (CanLII), (2002), 90 C.R.R. (2d) 1 ante, 2002 SCC 1 (CanLII), 2002 SCC 1 at para. 60. Similarly, international conventions do not alter domestic law except to the extent that they are incorporated into domestic law by statute: see Briggs v. Baptiste, [2000] 2 A.C. 40 (J.C. P.C.) at para. 40..."

Government funding of disability organizations (para. 21 of the report)

Paragraph 21 of Canada's report states:

[21] The disability component of the Social Development Partnerships Program (SDPP-D) has provided, for many years, $11 million in annual funding to support initiatives tackling social inclusion barriers faced by persons with disabilities. Historically, much of this funding was directed to 30 organizations, but as of 2015, SDPP-D will provide most of its funding through competitive processes for projects responding to current and emerging issues. The new approach includes transition funding measures for the former recipients of directed funding, developed in consultation with them, and learning sessions on social enterprise development and fundraising. In 2013, up to $9 million was awarded to projects of up to three years in duration focusing on areas under the Convention, such as promoting active living and greater social inclusion of persons with disabilities in their communities, and promoting the accessibility of physical environments, information, communication and services.

The change in the SDPP-D funding stream is not as positive as the Government of Canada would have this report indicate. The consequence of removing the operational funding from these 30 organizations is that core national disability support organizations including the Council of Canadians with Disabilities are being hamstrung. Moreover, organizations that represent particularly small groups, such as blindness organizations, will undoubtedly find it difficult to "compete" with projects from other disability groups that, based on prevelence alone, will necessarily impact a much wider range of individuals. If the criteria for this funding depends to any significant degree on the quantity of Canadians impacted, some of us are in trouble.

In Canada, a great deal of work to support persons with disabilities is carried out by non-profit/charitable organizations, who are already very resource-strapped and in many cases, largely dependent upon the generosity of Canadians to fulfill their missions. Placing further burdens on these organizations -- and repeatedly being forced to participate in intensive competitive application processes that will not provide even basic core funding for organizational operations is a significant burden indeed -- will limit the ability of the sector to carry forward with their important support work.

Guarantees to equality in Canadian live do not necessary accomplish the goals of the Convention (para. 23 thru 28 of the report)

Canada states in its report:

[23] Canada has robust equality and non-discrimination protections for persons with disabilities that are entrenched constitutionally in Section 15 of the Charter and provided for in a regime of F-P/T human rights legislation. These protections are consistent with Article 5 of the Convention and recognize a duty of reasonable accommodation of the needs, capacities and circumstances of persons with disabilities in order to ensure their equality rights.

[24] Section 15(1) of the Charter guarantees every individual the right to equality before and under the law and the right to equal benefit of the law without discrimination on a non-exhaustive list of prohibited grounds, which includes physical or mental disability. Section 15(2) of the Charter provides that government actions aimed at improving the conditions of historically disadvantaged groups, including persons with disabilities, will not be found to discriminate contrary to section 15(1). The equality guarantee under Section 15 covers all laws and policies, including those relating to education, health care, social programs and benefits, housing and other economic, social and cultural rights covered by the Convention.

[25] The Canadian Human Rights Act (CHRA) prohibits discrimination on grounds such as disability in employment, the provision of goods, services and facilities customarily available to the public, and accommodation. It applies to the Government of Canada, First Nations governments, and federally regulated private businesses, including in banking, airline, telecommunications and broadcasting and inter-provincial transportation sectors. All P/Ts have similar human rights legislation that prohibits discrimination within their own jurisdictions in areas such as employment and access to goods, services and facilities generally available to the public, including housing.

[26] While section 15 of the Charter does not define "disability", the term has been broadly interpreted by the Supreme Court of Canada to include a wide and evolving range of permanent, temporary or intermittent impairments, both physical and mental, which may or may not result in functional limitations as the person interacts with others and potentially with socially constructed barriers. Other laws define disability in terms appropriate to the law's specific purpose. For example, the CHRA defines disability broadly for the purposes of protecting individuals from discrimination as "any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug".

[27] The duty of reasonable accommodation requires, for example, that employers and service providers accommodate the needs of their employees and customers with disabilities, except where it would cause undue hardship, considering factors such as health, safety and cost. While "reasonable accommodation" is required in relation to a particular individual's situation, the Supreme Court of Canada has recognized that it also has a more systemic meaning. Where it is established that the reasonable accommodation would cause undue hardship, the impugned practice will be deemed not to be discriminatory.

[28] Equality protections are also provided for in F-P/T legislation. For example, the Criminal Code contains specific provisions for offences against persons with disabilities and sentencing provisions that make it an aggravating factor if the offence was motivated by bias, prejudice or hate based on mental or physical disability.

It is important to point out that the equality guarantees under the Charter are only applicable to government action and do not have any direct application to the private sector. Moreover, even some institutions which might be thought of as public bodies, such as universities, have in many cases been found to be outside the scope of the Charter: see, for example, Mckinney v. University of Guelph, [1990] 3 S.C.R. 229.

While there are other F-P/T laws which do have applicability to private enterprise, and the CHRA has applicability to some interprovincial commercial operations, much of this discussion is of limited application in the real world.

Moreover, note paragraph 24, where Canada states:

The equality guarantee under Section 15 covers all laws and policies, including those relating to education, health care, social programs and benefits, housing and other economic, social and cultural rights covered by the Convention.

'Equality' does not necessarily mean 'equity', nor does it necessarily mean that the government or private enterprise is doing anything in particular to help further the situation of persons with disabilities. Many who are in receipt of social assistance, in large part because they have never had access to the training and educational opportunities that would permit them to secure meaningful employment and escape the "welfare trap," are stuck in a vicious circle: they cannot afford to get an education, and so they cannot get a job sufficient to support themselves, and therefore they do not have the money to get an education. The institutions involved, such as colleges and universities, are unsympathetic to the social plight, and take the view that the F-P/T legislation and other laws do not protect against discrimination on the basis of economic circumstance, and as such they have no obligation to accommodate or otherwise attempt to support a person with a disability who is trying to "get ahead".

In short, 'equality' in all of these areas is admirable, but being equal does not necessarily mean that people have access to the same opportunities. Administrative tribunals and courts are not in the habit of attempting to push the social agenda forward, and though they may be prepared to level the playing field, they most often level it to the lowest common denominator. In their view, as a person with a disability, you have just as much right to be destitute and stuck in the welfare trap for the rest of your days as the next person.

That isn't exactly "progress", in my mind.

Disclaimer:

This blog is curated by the AEBC, but welcomes contributions from members and non-members alike. The thoughts, views, and opinions expressed in the Blind Canadians Blog are those of the contributing authors and do not necessarily reflect those of the AEBC, its members, or any of its donors and partners.

Comments

Thanks for the commentary and the very apt points you make. For too many in the world equality is for those with the price of admission. The disabled have usually been mythologized and impoverished but rarely treated equally.

Thanks for bringing this to my notice; a well-thought-out reflection.