Thinking About the Obstacles People Face


This year’s Touchstone Award recognizes Professor Laverne Jacobs. BY Brigitte Pellerin 22 Feb 2021

If we are to address disability inequality, says Professor Laverne Jacobs, we need to start by acknowledging the structural inequalities facing people with disabilities in daily life

Unfortunately, it took a crisis like the COVID-19 pandemic to force society to think about equality issues differently, she notes. “Nevertheless, this is the biggest catalyst that I have seen in our time.”

Jacobs, who founded and directs the Law, Disability & Social Change Project at Windsor University, is the recipient of this year-s
Touchstone Award that recognizes efforts to further equality in the legal community.

As a Black woman with a disability, she hopes the award will encourage legal professionals to think about the obstacles faced by people with disabilities. ‘”Nothing should be done “without us,” she says. “And so I hope that this award will also inspire further allyship than what already exists.”

Jacobs, who experienced a spinal cord injury during her career, has been involved with the Ontario Bar Association since she was a graduate student. She served on the executive of its Administrative Law Section. This experience “has provided me with opportunities to think about the challenges faced by people with disabilities in the administrative justice system,” she explains, noting that access and equality for marginalized communities within the administrative justice system features prominently in her work.

Jacobs often reflects on intersectional challenges. She proudly points to the student researchers at the Law, Disability & Social Change Project to illustrate how their interests range from family law and business law to administrative and criminal matters, and other fields not directly related to disability.

“The students, despite their backgrounds and areas of legal interest are brought together through an effort to view situations in society through the lens of disability equality,” she explains. “When the students graduate and enter into practice, they are thinking about how disability inequality manifests itself in their practice area and, more fundamentally, with respect to the client circumstances that arise before them.”

Understanding the law is important, she says. But meaningfully advancing equality “is to set the law aside and think about how to be a good human being.”

The Touchstone Award celebrates the accomplishments of an individual or an organization who has excelled in promoting equality in the legal profession, the judiciary, or the legal community in Canada. The award recognizes successful promotion or furthering of equality at the national level or a significant contribution relating to race, gender, disability, sexual orientation or other diversity issues in the recipient’s community.

Laverne Jacobs is Associate Dean (Research & Graduate Studies) and an Associate Professor at the University of Windsor, Faculty of Law. She teaches, researches and writes in the areas of law and disability, administrative law and human rights. Her work is characterized by an interest in the everyday experiences of people with disabilities, particularly as they engage with the law, and in ensuring equality, inclusion and fairness within the legal system. Dr. Jacobs is particularly interested in issues at the intersection of disability, equality and the administrative justice system. She has published and presented widely in her fields, in Canada and internationally.

Dr. Jacobs founded and directs The Law, Disability & Social Change Project, a research and public advocacy centre at Windsor Law that works to foster and develop inclusive communities. Working from the disability rights motto, “nothing without us”, the centre undertakes a variety of projects that aim to feed grounded research and theory into policy development and legal decision-making. She is also co-director of the Disability Rights Working Group at Berkeley Law’s Center for Comparative Equality & Anti-Discrimination Law.

Professor Jacobs held the inaugural Fulbright Visiting Research Chair in Canadian Studies at the University of California, Berkeley, and was a Visiting Scholar at Berkeley Law’s Center for the Study of Law and Society. Outside of the University, she has held Order-in-Council appointments as a part-time member of the Human Rights Tribunal of Ontario and as a member of the Accessibility Standards Advisory Council under the Accessibility for Ontarians with Dis

Original at https://www.nationalmagazine.ca/en-ca/articles/people/profiles/2021/thinking-about-the-obstacles-people-face




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Halifax project set to create accessible sex toys for people with disabilities – Halifax


Sex should be part of any conversation and it’s already happening around people with disabilities, said the Atlantic regional coordinator of Tetra Society of North America.

“It’s a subject that is kind of seen as taboo,” said Andrew Jantzen, whose organization is working with Venus Envy on a project focusing on creating accessible sex toys for people with disabilities in Halifax.

The project is called “Adaptations for Accessible Sex Practices Project.”


Andrew Jantzen of Tetra Society.

“Sex toys are not designed for people with disabilities, just like most other things that exist out there, so it’s trying to fill that gap,” said Jantzen.

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“And out there, people are talking about it. People want this to happen. So I’m just saying, how can we adapt things? How can we use some of the the handy skills that come with Tetra volunteers to be able to fill this gap?”

Read more:
People with disabilities still want sex, according to U of R research

The purpose of Tetra is to recruit skilled volunteer engineers and technicians to create assistive devices for people with disabilities, and creating adaptive and innovative equipment for sexual practices is just one of their many projects.

The education coordinator at Venus Envy, a sex shop and bookstore, said that the first phase of the project is to interview a group of people from the disabled community who want to talk about their sex lives, and to test out some of the devices that the project will be making.

“A lot of sex toys up until sort of five, 10 years ago were made for like straight penetrative sex. It’s not just disabled bodies that are being left out of kind of the thoughts around sex toys. It’s a lot of bodies,” said Rachele Manett.

Read more:
Young people with disabilities aren’t being taught sex-ed — and it’s putting them in danger

She said certain kinds of sex toys are just not working for people with disabilities.

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“Sometimes they’re too heavy. Buttons don’t work specifically when it comes to certain kinds of mobility limitations,” said Manett.

This is why she said the first phase of the project will look into what kind of sex toys people have access to that have made things better or more difficult, so that in the second phase the team of engineers and design specialists will have the information they need to create the equipment.

Manett said 40 people have applied as participants in just three weeks since the project has been announced.


Click to play video 'N.B. people with disabilities call for priority in COVID-19 vaccine plan'







N.B. people with disabilities call for priority in COVID-19 vaccine plan


N.B. people with disabilities call for priority in COVID-19 vaccine plan – Feb 8, 2021

She said they’re now in the process of creating a diverse group of participants to interview for the project.

“We’re trying to create a group of people that is quite diverse in the types of disabilities (they have), but also in terms of identities. We are looking to prioritize people with intersecting marginalized identities. So really making sure that we’re including voices who are sort of often left on the margins,” said Manett.

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She said that as a society, “we have very much infantilized people with disability and we treat them like children.”

“It’s really easy for us to say, well, that means disabled people aren’t having sex, which is not true … or that disabled people have more important things to worry about than sex,” Manett added.


Click to play video 'Adaptive clothing for people with disabilities'







Adaptive clothing for people with disabilities


Adaptive clothing for people with disabilities – Jan 2, 2021

But that’s not what the project is all about, she said.

“We already know that people with disabilities are having sex and want to be having sex. That’s the part that we’re not exploring,” said Manett.

“What we’re literally saying is how can we make sex better or more accessible or more inclusive and how can we as sort of a society, change our views instead of sort of asking more questions?”

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Tetra Society is asking anyone who would like to volunteer for the project to complete the online volunteer intake application here. 




© 2021 Global News, a division of Corus Entertainment Inc.





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Short New Caption Video Explains Why Electric Scooters Endanger People with Disabilities and Others and Gives You Tips to Help Keep Them Out of Toronto


and — Sign Up to Tell the Toronto Accessibility Advisory Committee on February 25, 2021 Why Toronto Must Not Allow E-Scooters

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: https://www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: https://www.facebook.com/aodaalliance/

February 12, 2021

summary

The COVID-19 pandemic continues to have devastating impact on our society. That should be the focus of 100% of the time of our political leaders. Despite this, it is inexcusable that The City of Toronto, among some other Ontario cities, continues to actively consider the possibility of unleashing electric scooters (e-scooters) on the city.

E-scooters would endanger the safety of people with disabilities, seniors, children and everyone else. They would create new accessibility barriers in public spaces impeding people with disabilities. Toronto already has two many disability barriers.

E-scooters are now banned in Toronto. That should continue. It is not good enough to say they cannot be ridden on sidewalks. We know that people will ride them on sidewalks, if they are just banned from sidewalks.

Help us convince Toronto Mayor John Tory not to allow e-scooters in Toronto. Email him: [email protected] and call his office 416 397-2489. Tell him to say no to e-scooters. We know the e-scooter corporate lobbyists have a feeding frenzy going on at City Hall. We need Mayor Tory to listen to us, the people, and not to give in to the corporate lobbyists.

Take your pick! Here are two easy ways you can help us stop Toronto from allowing e-scooters.

1. Watch and Spread the Word About Our New Short Captioned Video on How to Help Us Stop Toronto from Endangering the Public by Unleashing Electric Scooters

We just made public a brand new short captioned video about why we must stop e-scooters from being allowed in Toronto. This video is available at https://www.youtube.com/watch?v=PDdTJt9NK14&feature=youtu.be

Please watch this video and spread the word about it. AODA Alliance Chair David Lepofsky explains why e-scooters pose such a danger to people with disabilities, seniors, children and others, and why they would create new disability barriers. This video offers you very practical tips on how you can help us get Toronto to say no to e-scooters.

Post the link to this video on your website, on Twitter, on Facebook or on whatever social media you use.

2. Sign Up to Make a Presentation over Zoom or the Phone to the February 25, 2021 Special Meeting of the Toronto Accessibility Advisory Committee

On Thursday, February 25, 2021, starting at 9:30 a.m., The Toronto Accessibility Advisory Committee, appointed by the City of Toronto, is holding a special virtual meeting to receive feedback on the disability concerns with allowing e-scooters in Toronto. We encourage you to sign up to make a 5-minute presentation to that Committee. This would also help us oppose e-scooters in Toronto.

You can request a chance to speak to the Committee by emailing the Committee at [email protected] or phoning 416-338-5089. Below we set out the announcement of that meeting.

We commend the Toronto Accessibility Advisory Committee for holding this meeting. We urge Mayor Tory to log on to be a part of this meeting. As we said earlier, we need him to listen to us, and not only the corporate lobbyists who have had some 94 contacts with him or his office.

We also call on all members of Toronto City Council to log on to attend this meeting. It is especially important for 11 of them to do so, the 11 who voted on July 28, 2020 against having the City of Toronto further investigate disability concerns with allowing e-scooters in the city. Those 11 councilors who opposed us include: Councilors Ainslie, Bailao, Colle, Crawford, Filion, Ford, Grimes, Holyday, Lai, Layton and McKelvie.

It is great that one year ago, on February 3, 2020, the Toronto Accessibility Advisory Committee unanimously recommended to Toronto City Council not to allow e-scooters at all. The City of Toronto should have dropped its consideration of allowing e-scooters then and there. It is wrong for us to have to continue to try to oppose it, especially when we are faced with the ordeal of the COVID-19 pandemic.

We also invite you to check out the AODA Alliance’s Action Kit on how to help us keep e-scooters out of Toronto.

You can learn even more about our effort to protect people with disabilities, seniors and others from the dangers that e-scooters pose by visiting the AODA Alliance website’s e-scooters page.

MORE DETAILS

Announcement of Toronto Accessibility Advisory Committee February 25, 2021 Special Meeting

Originally posted at http://app.toronto.ca/tmmis/decisionBodyProfile.do?function=doViewMeetingNotice&meetingId=20132 NOTICE OF SPECIAL MEETING

TORONTO ACCESSIBILITY ADVISORY COMMITTEE

FEBRUARY 25, 2021

The Chair has called the meeting of the Toronto Accessibility Advisory Committee of Thursday, February 25, 2021 as a special meeting to hear a presentation from Transportation Services staff on Electric Kick-scooters (E-scooters). The details of the meeting are as follows:

Date: Thursday, February 25, 2021

Time: 9:30 a.m.

Location: Video Conference

Meetings of the Toronto Accessibility Advisory Committee will be held by electronic means and the proceedings of the Committee will be conducted publicly.

These measures are necessary to comply with physical distancing requirements and as civic buildings are closed to the public.

The video conference details will be published closer to the meeting dates.

The agenda will be distributed as soon as it is available. To view the most up-to-date schedule of meetings, please visit www.toronto.ca/council.

To provide comments or make a presentation to the Toronto Accessibility Advisory Committee

The public may submit written comments or register to speak to the Committee on any item on the agenda.

Written comments may be submitted by writing to [email protected]

To speak to the Committee, please register by e-mail to [email protected] or by phone at 416-338-5089. Registered speakers will be provided with instructions on connecting to the meeting.

For further information or assistance, please contact Carol Kaustinen, Administrator, at 416-338-5089 or e-mail [email protected]

CITY CLERK

January 6, 2021

Closed Meeting Requirements: If the Committee wants to meet in closed session (privately), a member of the Committee must make a motion to do so and give the reason why the Committee has to meet privately (City of Toronto Act, 2006).

Notice to People Writing or Making Presentations to the Committee: The City of Toronto Act, 2006 and the City of Toronto Municipal Code authorize the City of Toronto to collect any personal information in your communication or presentation to City Council or its Committees and Boards. The City collects this information to enable it to make informed decisions on the relevant issue(s). If you are submitting letters, faxes, e-mails, presentations or other communications to the City, you should be aware that your name and the fact that you communicated with the City will become part of the public record and will appear on the City’s website. The City will also make your communication and any personal information in it – such as your postal address, telephone number or e-mail address – available to the public, unless you expressly request the City to remove it.

Many Committee, Board, and Advisory Body meetings are available over the internet for the public to view. If you speak at the meeting you may appear in the video record of the meeting.

If you want to learn more about why and how the City collects your information, write to the City Clerk’s Office, City Hall, 100 Queen Street West, Toronto ON M5H 2N2 or call 416-338-5089.




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Alberta researchers want to improve transitional system for people with disabilities


Dr. Chester Ho, professor at the University of Alberta, says for years, patients with spinal cord injuries have been ringing the alarm about not having the same kind of access to disability care as those living in urban areas.

“We hear time after time from our patients that after they leave Glenrose or Foothills, they feel like they are falling off a cliff because although they got excellent services at these two regional centres… once they leave, it’s a whole different story,” explained Ho, who works in the division of physical medicine and rehabilitation.

Ho, his assistant professor Adalberto Loyola-Sanchez and his team are looking for ways to make that transition period smoother for outpatients by exploring a model of transitional care that works like a hub and spokes system, akin to Alberta’s system of major and minor airports.

Edmonton and Calgary will primarily act as hubs, providing spinal cord injury specialty services and information to patients on managing their conditions.

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Whereas, health-care providers in communities outside of the two cities will be the spokes, providing ongoing care and support for outpatients in the community.

Ho says health-care providers in smaller communities that don’t regularly deal with spinal cord injuries often don’t have the experience or resources to manage the chronic issues that stem from the condition.

The four-year project was awarded a grant from the Canadian Institutes of Health Research’s new Transitions in Care initiative. Several other entities have contributed funding for the project, totalling around $1 million.

Marty Rehman is one of Ho’s patients. Rehman, a Red Deer resident, sustained a spinal cord injury after falling and was left paralyzed from the neck down.

Read more:
‘Do our lives count for less?’: Coronavirus shows gaps in Canada’s disability aid, experts say

He spent nearly a year at Foothills Medical Centre in Calgary before moving back home.

During his recovery process, he experienced some major roadblocks.

“There’s really no applicable therapy or equipment in the Red Deer Hospital,” Rehman said.

“They don’t really have anything as an outpatient for the physiotherapy. There’s nothing there that will help me improve.”

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But then Ho stepped in to find a resolution to help Rehman get the adequate rehabilitation care he needed.

“He got me hooked up with the therapist in Lacombe., Alta. It’s about a 50-kilometre drive from here,” he added.

Rehman has since met others in the same situation, who’ve had to commute from out of town in to receive care, further highlighting the need for more rehabilitation programs and equipment across the province.

Rehman says he received excellent care in Lacombe and is now able to have some movement in his arms, which has allowed him to operate a wheelchair with a joystick instead of having to use a chin-controlled wheelchair.

Ho’s study is expected to be completed by 2023.

Currently, both Lethbridge and Slave Lake are participants in the pilot project, however, the team is hoping to eventually expand the number of spokes to cover the entire province.

The researchers’ plan is to build capacity in spoke communities and constant communication between the hubs and spokes wherein patients with spinal cord injuries will experience a more consistent level of care, along with fewer complications in their lives.

Read more:
Canadians with disabilities struggling financially due to coronavirus pandemic: survey

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The Claresholm & District Transportation Society is a non-profit that has been helping bridge the gap for nearly two decades by helping provide rides to seniors and those with disabilities to their medical appointments.

“We’ve had [a situation]… where they had to discharge somebody and they did it at eight o’clock at night,” said Howard Paulsen, chair of the Claresholm & District Transportation Society.

“They were calling up our transportation service because they had no other way of getting home, so we will pick them up and bring them back home.”

He added that their drivers are qualified professionals who often go out of their way to offer clients personal safety and comfort.

Paulsen says with doctor appointments being daunting enough, those using their services have expressed gratitude for the drivers being there for them in support.




© 2021 Global News, a division of Corus Entertainment Inc.





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People with disabilities request priority for COVID-19 vaccine in N.B.


The New Brunswick Coalition of Person with Disabilities is calling on the province to prioritize people with disabilities in its vaccine rollout schedule.

The group’s vice-president, Murielle Pitre, said people with disabilities often have other health conditions that leave them more vulnerable to the coronavirus which should be taking into consideration in the province’s vaccine plan.

“I think that we should figure somewhere on the schedule and the reality is that we are just not,” said Pitre.

Read more:
Coronavirus — Parents of Quebecers with developmental challenges call for vaccine priority

She said the coalition supports the decision to have health-care and senior-care workers and seniors at the top of the list to receive the vaccine. But she says people with disabilities should be included among the vulnerable population.

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“Many people with disabilities have lung issues. For example, I have scoliosis and my lungs don’t function at 100 per cent.”

Mike Parker of Moncton was born with cerebral palsy and also suffers from a heart and lung condition, which he said leave him more vulnerable to COVID-19.

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“In my case, it is a heart and lung disorder, which scares the heck out of me and that is why I don’t go out that much,” he said.

He said that as a person with a disability, he feels overlooked in the province’s vaccine rollout plans.

“Us the disabled, we are not even mentioned, so it is upsetting,” he said.


Click to play video 'COVID-19 long haulers denied disability insurance claims'







COVID-19 long haulers denied disability insurance claims


COVID-19 long haulers denied disability insurance claims

People with disabilities are also not specifically listed in Nova Scotia’s vaccine rollout plans.

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Pitre said many people with disabilities have been housebound for months, which is impacting their mental health.

“Many people have been isolating since last year, I mean, since the beginning of the pandemic because they are afraid to go out,” she said.

Pitre said has spoken to her local MLA several times on the matter but hasn’t heard back yet.

“We are waiting on a response,” she said.

Read more:
People with disabilities, autism carry a heavier pandemic burden, advocates say

On Monday afternoon, a spokesperson for the Department of Health, Shawn Berry, said in an email to Global News that long-term care workers and residents and health-care workers are the priority and the province “will be providing more details in the coming weeks about the next groups in its vaccination roll out plans.”

Meanwhile, Parker said his shot cannot come soon enough.

“I am afraid that if I get (COVID-19) chances are I can’t say if I would survive or not. It is 50/50 with me,” he said.

 





© 2021 Global News, a division of Corus Entertainment Inc.





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Waiting list ‘abyss’ in N.S. for care and housing of people with disabilities: doctor


A Nova Scotia family doctor says people with intellectual disabilities can develop illnesses ranging from diabetes to stroke when forced to live in unsuitable housing without expert help.

Dr. Karen McNeil told a legislature committee today many families feel like they’re experiencing “an abyss” because their loved ones languish on a 1,698-person waiting list, either to begin receiving care or in hope of being transferred to a more suitable living arrangement.

McNeil is a founding member of the Dalhousie family medicine adult developmental disability clinic in Halifax, where since 2010 she has supported primary care doctors who care for adults with intellectual disabilities

She told the committee that larger, so-called “congregate care” facilities that house about 525 of the 4,979 adults receiving care are unsuitable and that it’s well established they should be living in smaller, community homes.

Read more:
N.S. pledges homes for people with disabilities but advocate calls pace ‘glacial’

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McNeil says that’s particularly true during a pandemic when sharing bedrooms and bathrooms “is a recipe for disaster.”

The doctor says she sees people who are frustrated by living amid too much noise or who lack specialized care, leading to undiagnosed needs.

“When people with intellectual and development disabilities are forced to live in unhealthy situations, they try to communicate, and this is difficult when you have few words or no words,” McNeil told the Department of Community Services legislature committee.

“Sometimes they communicate very loudly, sometimes they get physical, sometimes they beat on themselves, sometimes out of desperation they beat on others.”

“I feel that they are telling us their environment is not suitable and in some cases it is oppressive,” she added.

The physician says family doctors often prescribe psychotropic medication because the province hasn’t created multidisciplinary teams of doctors who can probe the root causes of frustration. “There’s no reason we can’t create these teams,” she said. “And by not having this we are using more drugs. What do those drugs do? They create side effects such as diabetes and put them at risk of heart attack and stroke.”


Click to play video 'Facing eviction during COVID-19'







Facing eviction during COVID-19


Facing eviction during COVID-19

McNeil is part of the advocacy organization, Community Homes Action Group, which is urging the province to move more swiftly toward transferring people out of their congregate facilities – referred to as adult residential centres or regional rehabilitation centres – to small options homes where up to four people live with caregivers.

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Joyce d’Entremont, the chief executive of Mountains and Meadows Care Group, noted that a plan to shift 27 residents from Harbourside adult residential facility in Yarmouth to community homes – the first in the provincewide plan to phase out the institutions – has shown the process must take place at the pace that families and residents are comfortable with.

The Harbourside move, d’Entremont said, is happening over 12 to 18 months.

The hearing heard that Nova Scotia is the last jurisdiction in Canada to undertake the closure of institutions, after a moratorium on the construction of small options facilities occurred through the 1990s, as other provinces forged ahead with smaller residences.

Read more:
Battle over housing rights for people with intellectual disabilities in N.S. court

Maria Medioli, executive director of the disability support program, told the committee the advantage of being last is that the province has learned about the downside of shifting people into the community without adequate support.

“We have to set people up for success,” she said. “Some of these people have lived in an institution their whole lives. They’ve been told when to eat, when to sleep and who they have to live with. So to move to a community can be scary.”

The government has said in earlier news releases that it has budgeted $7.4 million in 2020-21 to create 50 new community placements, with plans to expand this transition “over the next several years.”

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Tracey Taweel, the deputy minister of Community Services, noted during today’s hearing that the department’s budget for the disabilities support program has grown $70 million in five years, to $389 million annually, with $75.5 million going toward the large congregate facilities.

She noted in her presentation that the province “remains fully committed to phasing out” the large facilities.

This report by The Canadian Press was first published Feb. 2, 2021.


Click to play video 'Dalhousie University professor says older LGBTQ+ face challenges in accessing housing supports'







Dalhousie University professor says older LGBTQ+ face challenges in accessing housing supports


Dalhousie University professor says older LGBTQ+ face challenges in accessing housing supports – Dec 30, 2020




© 2021 The Canadian Press





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Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities


A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE FOR IMMEDIATE RELEASE

January 28, 2021 Toronto: Forty years ago today was the most important single event to protect the constitutional equality rights of millions of people with disabilities, in Canada’s first 114 years. Four decades ago today, the Joint Committee of the Senate and House of Commons on the Constitution of Canada (the Joint Committee) voted to add equality rights for people with disabilities to the proposed Charter of Rights, then being debated. (The disability amendment)

Weeks earlier, in October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament to add a new Charter of Rights to Canada’s Constitution. The proposed Charter of Rights included an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, courts could not interprete section 15 to protect disability equality.

Without the benefit of fax machines, email, the internet or social media (which were years away), people with disabilities campaigned for the disability amendment. Their blitz got little media coverage.

In fall 1980, three major disability organizations appeared before the Joint Committee to call for the disability amendment. In response, on January 12, 1981, Justice Minister Jean Chretien said no to the disability amendment.

Despite that, people with disabilities tenaciously kept up the pressure. Victory came on January 28, 1981, when the Trudeau Government withdrew its opposition to the disability amendment. That day, the Joint Committee voted to pass the disability amendment. Canada became the first western democracy to explicitly protect equality for people with disabilities in its constitution. (Hansard transcript below)

Over the forty years that followed, the disability amendment led to some important court victories for disability rights. It also helped drive the passage of several accessibility laws: Ontario’s Accessibility for Ontarians with Disabilities Act 2005, Manitoba’s Accessibility for Manitobans Act 2013, Nova Scotia’s Accessibility Act 2017, and the federal Accessible Canada Act2019.

Canada should be proud of what was achieved forty years ago today in the name of equality and full participation for people with disabilities, said David Lepofsky who was one of the disability advocates who appeared before Parliament to advocate for the disability amendment and who now chairs the non-partisan AODA Alliance that campaigns for disability accessibility. However, despite the disability amendment, over six million people with disabilities in Canada still face far too many unfair barriers in areas like employment, transportation, education, health care and access to buildings. Top of mind today is the serious danger that patients with disabilities will suffer unjustified disability discrimination in access to life-saving critical medical care if the COVID-19 pandemic overloads Ontario hospitals, requiring the rationing or triage of critical care, dressed up as objective medical science. Those of us who fought for the disability amendment could not have imagined that forty years later, we’d need to use that victory to try to prevent disability discrimination in access to life-saving critical medical care.

In months of public debate over the Charter of Rights four decades ago, the only new constitutional right that was added to the Charter, and which was not in the original draft, was equality for people with disabilities something the media has also rarely covered. Even lesser known was a second disability rights victory for people who are deaf, deafened or hard of hearing at the Joint Committee four decades ago today. The Joint Committee also amended section 14 of the Charter, to guarantee the constitutional right to an interpreter for deaf persons when participating in legal proceedings. Previously, section 14’s wording did not guarantee the right to an interpreter to persons needing one due to hearing loss.

Contact: AODA Alliance Chair David Lepofsky, [email protected] For more background, check out:

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

2. Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee, on behalf of the Canadian National Institute for the Blind. He is now chair of the AODA Alliance.

3. Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee a decision the Federal Government reversed forty years ago today.

4. Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.

Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada Hansard Excerpts January 28, 1981

The following took place on Charter ss. 14 and 15 as it pertains to people with disabilities:

Mr. Robinson: Thank you, Mr. Chairman.
I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:
14. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment. Et en français, it est proposé
Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:
«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»
The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.
Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.
The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the [Page 84]
New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.
Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will notthe intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems. I am informed, for example
Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.
The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way. Mr. Robinson: Thank you, Mr. Chairman.
I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.
Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.
Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.
Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.
As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.
I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to [Page 85]
deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.
Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.
Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.
We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time. The Joint Chairman (Mr. Joyal): Thank you very much.
Mr. Robinson to conclude.
Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.
Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words or other authority in which the person is involved, they would be protected in those circumstances?
Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.
You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary. [Page 86]
So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings. The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.
Mr. Robinson: Yes, Mr. Chairman.
Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.
I would also suggest that the words other authority have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.
I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice. The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
Amendment negatived.
The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.
Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read ed or who is deaf to make it conform technically with the page.
Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following: ed or who is deaf has the right to the assistance of an
I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait. [Translation]
Senator Tremblay: Just to please my colleague who could very well read it himself. [Text]
Il est proposé
Que le projet de Loi constitutionnelle de 1981
j’imagine
[Page 87]
soit modifié par substitution
Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication. soit modifié par substitution, à l’article 14, de ce qui suit:
«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.» [Translation]
The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay. [Text]
Mr. McGrath, to propose the motion in the usual way?
Mr. McGrath: Thank you very much, Mr. Chairman.
I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment. Mr. Chrétien: Yes. Yes.
Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.
However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.
It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.
Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless. Mr. Crombie: Two good events on one motion. Two!
The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case. An hon. Member: I am sure they heard footsteps.
The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote. Amendment agreed to.
[Page 88]
Clause 14 as amended agreed to.
On Clause 15Equality before the law and equal protection of the law.
The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.
There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word revised on it, and the next subamendment in relation to the same main amendment is the one identified as CP8(1), Clause 15, page 6.
So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6. Monsieur Corbin.
M. Corbin: Merci, monsieur le president.
Or, je propose
Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit: «Droits à l’égalité
15. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»
Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following: Equality Rights
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age. [Translation]
Thank you, Mr. Chairman.
Le coprésident (M. Joyal): Thank you, Mr. Corbin.
[Text]
I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6. Mr. Robinson: Thank you, Mr. Chairman.
[Page 89]
I am very pleased to move the subamendment as follows
Mr. Epp: Just a point of order, Mr. Chairman.
I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?
The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.
Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment. The Joint Chairman (Mr. Joyal): No, that is not the way.
Go on, Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman.
The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words Every individual is equal» and substituting the following:
in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.
And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: physical or mental disability,; (c) adding to Clause 15(1) the following: marital status,; (d) adding to Clause 15(1) the following: sexual orientation,; (e) adding to Clause 15(1) the following: political belief,; (f) adding to Clause 15(1) the following: lack of means; and (g) moving the word or so that it appears immediately after the penultimate proscribed ground of discrimination.
Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal. In French, Mr. Chairman, if you would like me to read this in French. Il est proposé
Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:
a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:
«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de [Page 90]
toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»
b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,» c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,» d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,» e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,» f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»
g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié. Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».
Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause. The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party. Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so. The Joint Chairman (Mr. Joyal): The honourable David Crombie. Mr. Crombie: Thank you, Mr. Chairman.
Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words or age in Clause 15(1) thereof and substituting therefor the following words: age or mental or physical disability.
En français, il est proposé
Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»
Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment. Now, I am not sure we can continue to take this prosperity any longer!
However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis- [Page 91]
abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment. Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.
Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on. Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay! Mr. Chrétien: If I can have five minutes I will call the Prime Minister.
It is with great pleasure that I accept the amendment on behalf of the Government.
I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow. You can have lots of beer on my health.
Thank you for your good representation.
The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent. Amendment agreed to.
The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way. Mr. Robinson: Thank you, Mr. Chairman.
I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.
I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.
Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.
Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.
I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.
We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted. [Page 92]
Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.
Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.
Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.
The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.
The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.
I would invite you to restrict your remarks to the contents of the proposed amendment.




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Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities


A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE FOR IMMEDIATE RELEASE

January 28, 2021 Toronto: Forty years ago today was the most important single event to protect the constitutional equality rights of millions of people with disabilities, in Canada’s first 114 years. Four decades ago today, the Joint Committee of the Senate and House of Commons on the Constitution of Canada (the Joint Committee) voted to add equality rights for people with disabilities to the proposed Charter of Rights, then being debated. (The disability amendment)

Weeks earlier, in October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament to add a new Charter of Rights to Canada’s Constitution. The proposed Charter of Rights included an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, courts could not interprete section 15 to protect disability equality.

Without the benefit of fax machines, email, the internet or social media (which were years away), people with disabilities campaigned for the disability amendment. Their blitz got little media coverage.

In fall 1980, three major disability organizations appeared before the Joint Committee to call for the disability amendment. In response, on January 12, 1981, Justice Minister Jean Chretien said no to the disability amendment.

Despite that, people with disabilities tenaciously kept up the pressure. Victory came on January 28, 1981, when the Trudeau Government withdrew its opposition to the disability amendment. That day, the Joint Committee voted to pass the disability amendment. Canada became the first western democracy to explicitly protect equality for people with disabilities in its constitution. (Hansard transcript below)

Over the forty years that followed, the disability amendment led to some important court victories for disability rights. It also helped drive the passage of several accessibility laws: Ontario’s Accessibility for Ontarians with Disabilities Act 2005, Manitoba’s Accessibility for Manitobans Act 2013, Nova Scotia’s Accessibility Act 2017, and the federal Accessible Canada Act2019.

Canada should be proud of what was achieved forty years ago today in the name of equality and full participation for people with disabilities, said David Lepofsky who was one of the disability advocates who appeared before Parliament to advocate for the disability amendment and who now chairs the non-partisan AODA Alliance that campaigns for disability accessibility. However, despite the disability amendment, over six million people with disabilities in Canada still face far too many unfair barriers in areas like employment, transportation, education, health care and access to buildings. Top of mind today is the serious danger that patients with disabilities will suffer unjustified disability discrimination in access to life-saving critical medical care if the COVID-19 pandemic overloads Ontario hospitals, requiring the rationing or triage of critical care, dressed up as objective medical science. Those of us who fought for the disability amendment could not have imagined that forty years later, we’d need to use that victory to try to prevent disability discrimination in access to life-saving critical medical care.

In months of public debate over the Charter of Rights four decades ago, the only new constitutional right that was added to the Charter, and which was not in the original draft, was equality for people with disabilities something the media has also rarely covered. Even lesser known was a second disability rights victory for people who are deaf, deafened or hard of hearing at the Joint Committee four decades ago today. The Joint Committee also amended section 14 of the Charter, to guarantee the constitutional right to an interpreter for deaf persons when participating in legal proceedings. Previously, section 14’s wording did not guarantee the right to an interpreter to persons needing one due to hearing loss.

Contact: AODA Alliance Chair David Lepofsky, [email protected] For more background, check out:

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

2. Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee, on behalf of the Canadian National Institute for the Blind. He is now chair of the AODA Alliance.

3. Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee a decision the Federal Government reversed forty years ago today.

4. Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.

Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada Hansard Excerpts January 28, 1981

The following took place on Charter ss. 14 and 15 as it pertains to people with disabilities:

Mr. Robinson: Thank you, Mr. Chairman.
I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:
14. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment. Et en français, it est proposé
Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:
«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»
The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.
Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.
The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the [Page 84]
New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.
Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will notthe intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems. I am informed, for example
Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.
The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way. Mr. Robinson: Thank you, Mr. Chairman.
I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.
Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.
Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.
Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.
As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.
I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to [Page 85]
deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.
Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.
Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.
We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time. The Joint Chairman (Mr. Joyal): Thank you very much.
Mr. Robinson to conclude.
Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.
Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words or other authority in which the person is involved, they would be protected in those circumstances?
Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.
You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary. [Page 86]
So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings. The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.
Mr. Robinson: Yes, Mr. Chairman.
Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.
I would also suggest that the words other authority have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.
I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice. The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
Amendment negatived.
The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.
Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read ed or who is deaf to make it conform technically with the page.
Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following: ed or who is deaf has the right to the assistance of an
I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait. [Translation]
Senator Tremblay: Just to please my colleague who could very well read it himself. [Text]
Il est proposé
Que le projet de Loi constitutionnelle de 1981
j’imagine
[Page 87]
soit modifié par substitution
Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication. soit modifié par substitution, à l’article 14, de ce qui suit:
«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.» [Translation]
The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay. [Text]
Mr. McGrath, to propose the motion in the usual way?
Mr. McGrath: Thank you very much, Mr. Chairman.
I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment. Mr. Chrétien: Yes. Yes.
Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.
However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.
It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.
Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless. Mr. Crombie: Two good events on one motion. Two!
The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case. An hon. Member: I am sure they heard footsteps.
The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote. Amendment agreed to.
[Page 88]
Clause 14 as amended agreed to.
On Clause 15Equality before the law and equal protection of the law.
The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.
There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word revised on it, and the next subamendment in relation to the same main amendment is the one identified as CP8(1), Clause 15, page 6.
So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6. Monsieur Corbin.
M. Corbin: Merci, monsieur le president.
Or, je propose
Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit: «Droits à l’égalité
15. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»
Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following: Equality Rights
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age. [Translation]
Thank you, Mr. Chairman.
Le coprésident (M. Joyal): Thank you, Mr. Corbin.
[Text]
I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6. Mr. Robinson: Thank you, Mr. Chairman.
[Page 89]
I am very pleased to move the subamendment as follows
Mr. Epp: Just a point of order, Mr. Chairman.
I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?
The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.
Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment. The Joint Chairman (Mr. Joyal): No, that is not the way.
Go on, Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman.
The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words Every individual is equal» and substituting the following:
in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.
And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: physical or mental disability,; (c) adding to Clause 15(1) the following: marital status,; (d) adding to Clause 15(1) the following: sexual orientation,; (e) adding to Clause 15(1) the following: political belief,; (f) adding to Clause 15(1) the following: lack of means; and (g) moving the word or so that it appears immediately after the penultimate proscribed ground of discrimination.
Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal. In French, Mr. Chairman, if you would like me to read this in French. Il est proposé
Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:
a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:
«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de [Page 90]
toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»
b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,» c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,» d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,» e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,» f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»
g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié. Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».
Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause. The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party. Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so. The Joint Chairman (Mr. Joyal): The honourable David Crombie. Mr. Crombie: Thank you, Mr. Chairman.
Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words or age in Clause 15(1) thereof and substituting therefor the following words: age or mental or physical disability.
En français, il est proposé
Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»
Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment. Now, I am not sure we can continue to take this prosperity any longer!
However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis- [Page 91]
abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment. Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.
Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on. Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay! Mr. Chrétien: If I can have five minutes I will call the Prime Minister.
It is with great pleasure that I accept the amendment on behalf of the Government.
I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow. You can have lots of beer on my health.
Thank you for your good representation.
The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent. Amendment agreed to.
The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way. Mr. Robinson: Thank you, Mr. Chairman.
I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.
I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.
Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.
Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.
I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.
We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted. [Page 92]
Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.
Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.
Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.
The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.
The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.
I would invite you to restrict your remarks to the contents of the proposed amendment.




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Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities – A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities – A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

January 28, 2021 Toronto: Forty years ago today was the most important single event to protect the constitutional equality rights of millions of people with disabilities, in Canada’s first 114 years. Four decades ago today, the Joint Committee of the Senate and House of Commons on the Constitution of Canada (“the Joint Committee”) voted to add equality rights for people with disabilities to the proposed Charter of Rights, then being debated. (“The disability amendment”)

Weeks earlier, in October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament to add a new Charter of Rights to Canada’s Constitution. The proposed Charter of Rights included an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, courts could not interprete section 15 to protect disability equality.

Without the benefit of fax machines, email, the internet or social media (which were years away), people with disabilities campaigned for the disability amendment. Their blitz got little media coverage.

In fall 1980, three major disability organizations appeared before the Joint Committee to call for the disability amendment. In response, on January 12, 1981, Justice Minister Jean Chretien said no to the disability amendment.

Despite that, people with disabilities tenaciously kept up the pressure. Victory came on January 28, 1981, when the Trudeau Government withdrew its opposition to the disability amendment. That day, the Joint Committee voted to pass the disability amendment. Canada became the first western democracy to explicitly protect equality for people with disabilities in its constitution. (Hansard transcript below)

Over the forty years that followed, the disability amendment led to some important court victories for disability rights. It also helped drive the passage of several accessibility laws: Ontario’s Accessibility for Ontarians with Disabilities Act 2005, Manitoba’s Accessibility for Manitobans Act 2013, Nova Scotia’s Accessibility Act 2017, and the federal Accessible Canada Act2019.

“Canada should be proud of what was achieved forty years ago today in the name of equality and full participation for people with disabilities,” said David Lepofsky who was one of the disability advocates who appeared before Parliament to advocate for the disability amendment and who now chairs the non-partisan AODA Alliance that campaigns for disability accessibility. “However, despite the disability amendment, over six million people with disabilities in Canada still face far too many unfair barriers in areas like employment, transportation, education, health care and access to buildings. Top of mind today is the serious danger that patients with disabilities will suffer unjustified disability discrimination in access to life-saving critical medical care if the COVID-19 pandemic overloads Ontario hospitals, requiring the rationing or “triage” of critical care, dressed up as objective medical science. Those of us who fought for the disability amendment could not have imagined that forty years later, we’d need to use that victory to try to prevent disability discrimination in access to life-saving critical medical care.”

In months of public debate over the Charter of Rights four decades ago, the only new constitutional right that was added to the Charter, and which was not in the original draft, was equality for people with disabilities – something the media has also rarely covered. Even lesser known was a second disability rights victory for people who are deaf, deafened or hard of hearing at the Joint Committee four decades ago today. The Joint Committee also amended section 14 of the Charter, to guarantee the constitutional right to an interpreter for deaf persons when participating in legal proceedings. Previously, section 14’s wording did not guarantee the right to an interpreter to persons needing one due to hearing loss.

Contact: AODA Alliance Chair David Lepofsky, [email protected]

For more background, check out:

  1. Transcript of the three disability organizations’ presentations in the 1980 fall to the Joint Committee calling for the Charter disability amendment.
  1. Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee, on behalf of the Canadian National Institute for the Blind. He is now chair of the AODA Alliance.
  1. Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee – a decision the Federal Government reversed forty years ago today.
  1. Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.

Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada Hansard Excerpts January 28, 1981

The following took place on Charter ss. 14 and 15 as it pertains to people with disabilities:

Mr. Robinson: Thank you, Mr. Chairman.

I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:

  1. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment.

Et en français, it est proposé

Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:

«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»

The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.

Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.

The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the

[Page 84]

New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.

Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will not—the intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems.

I am informed, for example …

Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.

The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.

Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.

Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.

Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.

As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.

I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to

[Page 85]

deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.

Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.

Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.

We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time.

The Joint Chairman (Mr. Joyal): Thank you very much.

Mr. Robinson to conclude.

Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.

Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words “or other authority” in which the person is involved, they would be protected in those circumstances?

Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.

You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary.

[Page 86]

So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings.

The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.

Mr. Robinson: Yes, Mr. Chairman.

Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.

I would also suggest that the words “other authority” have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.

I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Amendment negatived.

The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.

Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read “ed or who is deaf” to make it conform technically with the page.

Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following:

ed or who is deaf has the right to the assistance of an”

I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait.

[Translation]

Senator Tremblay: Just to please my colleague who could very well read it himself.

[Text]

Il est proposé

Que le projet de Loi constitutionnelle de 1981 …

j’imagine

[Page 87]

soit modifié par substitution …

Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication.

… soit modifié par substitution, à l’article 14, de ce qui suit:

«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.»

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

[Text]

Mr. McGrath, to propose the motion in the usual way?

Mr. McGrath: Thank you very much, Mr. Chairman.

I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment.

Mr. Chrétien: Yes. Yes.

Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.

However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.

It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.

Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless.

Mr. Crombie: Two good events on one motion. Two!

The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case.

An hon. Member: I am sure they heard footsteps.

The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote.

Amendment agreed to.

[Page 88]

Clause 14 as amended agreed to.

On Clause 15—Equality before the law and equal protection of the law.

The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.

There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word “revised” on it, and the next subamendment in relation to the same main amendment is the one identified as CP—8(1), Clause 15, page 6.

So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6.

Monsieur Corbin.

  1. Corbin: Merci, monsieur le president.

Or, je propose

Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit:

«Droits à l’égalité

  1. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»

Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following:

“Equality Rights

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

[Translation]

Thank you, Mr. Chairman.

Le coprésident (M. Joyal): Thank you, Mr. Corbin.

[Text]

I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6.

Mr. Robinson: Thank you, Mr. Chairman.

[Page 89]

I am very pleased to move the subamendment as follows …

Mr. Epp: Just a point of order, Mr. Chairman.

I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?

The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.

Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment.

The Joint Chairman (Mr. Joyal): No, that is not the way.

Go on, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words “Every individual is equal» and substituting the following:

in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.

And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: “physical or mental disability,”; (c) adding to Clause 15(1) the following: “marital status,”; (d) adding to Clause 15(1) the following: “sexual orientation,”; (e) adding to Clause 15(1) the following: “political belief,”; (f) adding to Clause 15(1) the following: “lack of means”; and (g) moving the word “or” so that it appears immediately after the penultimate proscribed ground of discrimination.

Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal.

In French, Mr. Chairman, if you would like me to read this in French.

Il est proposé

Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:

  1. a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:

«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de

[Page 90]

toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»

  1. b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,»
  2. c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,»
  3. d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,»
  4. e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,»
  5. f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»
  6. g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié.

Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».

Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party.

Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so.

The Joint Chairman (Mr. Joyal): The honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words “or age” in Clause 15(1) thereof and substituting therefor the following words:

age or mental or physical disability.

En français, il est proposé

Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»

Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment.

Now, I am not sure we can continue to take this prosperity any longer!

However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis-

[Page 91]

abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment.

Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.

Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on.

Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay!

Mr. Chrétien: If I can have five minutes I will call the Prime Minister.

It is with great pleasure that I accept the amendment on behalf of the Government.

I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow.

You can have lots of beer on my health.

Thank you for your good representation.

The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.

I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.

Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.

Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.

I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.

We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted.

[Page 92]

Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.

Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.

Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.

The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.

I would invite you to restrict your remarks to the contents of the proposed amendment.



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


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: http://www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: http://www.facebook.com/aodaalliance/

January 13, 2021

SUMMARY

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

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

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

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

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

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

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

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

MORE DETAILS

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

January 12, 1981

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

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

Equality rights:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The work of the Council

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Globe and Mail January 13, 1981

Disabled out in the cold, spokesman at CNIB says

Tuesday, January 13, 1981

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

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

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

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

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




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