UBC Theses and Dissertations

UBC Theses Logo

UBC Theses and Dissertations

Accessibility rights for disabled people Hosking, David Leigh 1994

Your browser doesn't seem to have a PDF viewer, please download the PDF to view this item.

Item Metadata


831-ubc_1994-0457.pdf [ 10.89MB ]
JSON: 831-1.0077520.json
JSON-LD: 831-1.0077520-ld.json
RDF/XML (Pretty): 831-1.0077520-rdf.xml
RDF/JSON: 831-1.0077520-rdf.json
Turtle: 831-1.0077520-turtle.txt
N-Triples: 831-1.0077520-rdf-ntriples.txt
Original Record: 831-1.0077520-source.json
Full Text

Full Text

ACCESSIBILITY RIGHTS FOR DISABLED PEOPLE by DAVID LEIGH HOSKING B.A. Adv., University of Saskatchewan, 1972 LL.B., University of Saskatchewan, 1976 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (FACULTY OF LAW) We accept this thesis as conforming to the required standard  THE UMVERSITY OF BRITISH COLUMBIA June 1994 © David Leigh Hosking, 1994  __  ____  ____  _  ____  __  __  for an advanced fulfilment of the requirements In presenting this thesis in partial Library shall make it sh Columbia, I agree that the degree at the University of Briti extensive I further agree that permission for y. stud and ce ren refe for able avail freely head of my purposes may be granted by the copying of this thesis for scholarly copying or resentatives. It is understood that department or by his or her rep written shall not be allowed thout my gain cial finan for s thesi this of publication permission.  (Signature)  ent  of  artm Dep  The University of British Columbia Vancouver, Canada  Date  DE-6 (2/88)  >  ///  11  THESIS ABSTRACT  The term “accessibility rights” refers to the right of disabled people to benefit from  the provision of goods and services generally available to the public without discrimination because of physical disability caused by providing the services from a location which people cannot physically access. Historically, disabled people in Canada have been stigmatized and marginalized. This social position has been changing since the disabled consumer movement arose and placed disability rights on the political agenda. Current official policy is to integrate disabled people into all aspects of society. A major barrier to this policy is the failure to effectively implement accessibility rights. This thesis examines the nature of accessibility rights and their legal protection and offers proposals for improving the implementation of these rights. The major sources of legal protection for the rights of disabled people are human rights statutes and the Charter ofRights. For this reason these laws are considered in detail to determine how effectively they protect accessibility rights. This thesis concludes that the current protections are inadequate and fundamentally incapable of guaranteeing accessibility rights.  Three proposals for  improvements are made. First, legislatures should set out detailed policy directions for the implementation of these rights.  Second, the agencies which impact on the  implementation of accessibility rights should be required to coordinate their activities to ensure that the work of each agency complements that of the others. Third, three new implementation strategies should be adopted. First, self-regulating professions should adopt into their professional standards a duty to implement the principles of barrier free design into every aspect of their professional activities.  Second, existing regulatory agencies should have their  responsibilities and powers augmented so they assume a greater role in the enforcement  111  of accessibility rights. Third, human rights legislation should be amended to add a regulatory enforcement strategy to the existing complaints based strategy. This additional strategy should be based on the concept of adaptation planning. This concept would allow for the orderly and cost-effective transformation ofthe physical structure of society so that disabled people no longer experience discrimination in the provision of services due to physical barriers.  iv  TABLE OF CONTENTS  Abstract Table of Contents List of Tables I.  INTRODUCTION  iv viii 1  II. THE SOCIAL CONSTRUCT OF DISABILITY A. Who are the Disabled? i. Defmitions ii. Disability as Social Construct iii. Group Identity iv. Some Statistics B. The Social Standing of Disabled People i. Deviance and Segregation ii. Barriers iii. Consequences  10 10 10 15 17 20 26 26 29 33  III. EQUALITY AND NON-DISCRIMINATION A. The Elastic Concept of Equality i. Equality at Common Law (Formal Equality) ii. The Failure of Formal Equality iii. Substantive Equality iv. A Role for Both Formal and Substantive Equality B. Approaches to Equality for Disabled People i. Separate but Equal ii. Separate and Special iii. Comparable Standards iv. Full Integration C. Limitations to Equality Claims  38 39 41 42 43 46 48 51 51 52 53 55  IV. OFFICIAL POLICY TOWARD DISABLED PEOPLE A. Integration as Official Policy  58 58  V  i. The Policy of Deinstitutionalization ii. Human Rights Legislation iii. The Obstacles Report iv. Federal Government Employment Policy Initiatives v. Inclusion of Disability in Section 15 of the Charter vi. The Emplojment Equity Act vii. The Federal Contractors Program viii. National Strategy for the Integration of Persons with Disabilities B. The Slowness of Change i. Is the Change Slow ii. Why is Change So Slow C. Political Advocacy  73 76 76 81 92  V. HUMAN RIGHTS LEGISLATION A. General Principles of Interpretation B. Defmition of Discrimination i. Judicial Defmitions ii. Statutory Defmitions C. Definition of Disability D. Definition of Goods, Services, and Facilities Provided to the Public E. Limitations on Protection Provided i. General Legislative Limitations ii. General Implied Limitations a. Bona Fide Occupational Requirements b. Bona fide Justification c. Reasonable Accommodation Short of Undue Hardship iii. Specific Legislative Limitations G. Remedies Under Human Rights Legislation i. Statutory Powers of Remedy ii. Dealing with Discriminatory Legislation H. Criticism of the Enforcement Model I. Conclusions  97 98 102 102 107 111 114 120 120 123 124 139 143 149 151 151 158 166 172  VI. THE A. B. C.  176 179 184 191 194 200  .  CHARTER OF RIGHTS AND FREEDOMS General Principles of Interpretation What is Government? Equality Rights under 5. 15(1): General Principles i. Equality Without Discrimination ii. What is “Law” for the Purposes of Section 15?  59 64 65 66 67 70 72  vi D. Interpreting Section 1. i. Section 1 The Meaning of “Prescribed by Law” ii. Section 1 Demonstrably Justified E. Remedies under the Charter i. Severance and Reading In ii. Constitutional Exemption F. Enforcing Rights: Choosing the Judicial or Human Rights System i. When Is A Choice Available? ii. Making The Choice G. Conclusions -  -  ...  VII. U.S. LEGISLATION RESPECTING DISABILITY RIGHTS A. Implementation by Contract B. Implementation by Financial Control i. The Rehabilitation Act, 1973 ii. The Individuals with Disabilities Education Act (IDEA) C. Prescriptive Statutes i. The Rehabilitation Act a. Section 501 b. Section 502 ii. The Americans with Disabilities Act, 1990 a. Title I: Employment b. Title II: Public Accommodation and Services Operated by Public Entities c. Title III: Public Accommodation and Services Operated by Private Entities Title IV Conimunications d. D. Comments on the Effectiveness of Federal Law E. Conclusions -  VIII.  PROPOSALS FOR IMPROVED IMPLEMENTATION ACCESSIBILITY RIGHTS A. The Need for Clear Policy Direction i. Operating Principles ii. Services Provided by Private Entities B. The Need for Agency Coordination C. New Implementation Strategies i. Self-Regulating Professions ii. Alternate Enforcement Agencies iii. A Regulatory Human Rights Enforcement Model  203 205 207 218 222 228 231 231 235 238 242 248 250 251 255 258 258 258 262 264 266 267 272 277 278 281  OF 284 290 292 294 300 306 307 310 316  vu a. Adaptation Planning b. Advantages and Disadvantages of Adaptation Planning c. Operating Principles for Adaptation Plans d. Adaptation Planning for Governments e. A Role for Complaints D. Conclusions  .  Bibliography  318 320 324 330 334 335 338  vu’ List of Tables  Table 1: Total Population and Disabled Population by Age Group  23  Table 2: Disabled Population by Age and Residence  23  Table 3: Percentage of Total Disabled Population by Age Group and Severity  24  Table 4: Type of Physical Disability by Age  24  Table 5: Number of People Using of Assistive Devices by Age Group  25  Table 6: Disabled Persons by Degree of Dependence Performing Everyday Activities (age 15 and over, in thousands)  26  Table 7: Number of People Having Expenses Related to Disability Not Reimbursed by any Insurance or Govermnent Program  34  Table 8: Amount of Expenditure Related to Disability, age 15 and over  35  Table 9: Disabled Persons by Degree of Disability and Labour Force Status, age 15 64, in thousands  35  Table 10: Disabled Employees by Major Occupational Grouping  36  -  Table 11: Summary of “Serious Impediments” to Implementing Disability Rights Mandates Ranked by State and Advocacy Group Officials  279  Introduction  1  I. INTRODUCTION:  Canadian human rights legislation and the Charter of Rihts and Freedoms’ guarantee physically disabled people the right to be free from discrimination in employment, residential accommodation, and the provision of goods, services, facilities, and accommodations available to the public. Discrimination against disabled people takes many forms. An employer discriminates against aman who usesawheelchair when it refuses to hire him because the employer believes that the appearance of a man dependent on a wheelchair will reflect poorly on its business image. 2 A landlord discriminates against a prospective tenant whose sole source of income is a disability pension when he refuses to rent to anyone who does not have employment income. 3 A hospital which refuses to allow a seeing eye dog on the premises discriminates against a blind person who uses that assistive aid even if the hospital allows the person on the premises without the dog. 4 A social club discriminates against a member who uses a wheelchair when it refuses to allow that person to take part in a social dance. 5 An interprovincial bus company discriminates against disabled people when it fails to provide buses which are designed to board and transport people who use wheelchairs. 6 In this thesis I examine in detail one manifestation of discrimination against physically disabled people provided to the public.  --  physical barriers to the equal use ofand benefit from services  The right to physical access is a somewhat awkward and  1.  Part I of the Constitution Act, 1982 [enacted by the Canada Act, 1982, U. K. 1982, c. 11].  2.  Gauvreau v. BanqueNationaledu Canada (1993) 18 C.H.R.R. D125.  3.  Trudeau v. Cbung(1991) 16 C.H.R.R. D125.  4.  Peters & Sask. Human 1?i’hts Comm. v. University Hospital Board (1983) 4 C.H.R.R. D11464.  5.  Letendre v. TheRoyal Canadian Legion, South Burnaby Branch, No. 83(1989)10 C.H.R.R. D/5846.  6.  Ralston v. Greyhound Lines ofCanada, Canadian Human Rights Commission decision, April, 1994. In this conciliated settlement Greyhound agreed to provide ten buses which are designed to board and transport people who use wheelchairs. These buses will be used on a number of interprovinciai runs and passengers will need to reserve one day in advance of the trip.  Introduction  2  ambiguous term. The word “accessibility” has a number of meanings but I think that, in the context of discussions about discrimination and services, the phrase “accessibility rights” is sufficiently clear to describe the general concept that physically disabled people should not be prevented from using, and obtaining an equal benefit from, services solely  because of a physical barrier. I use the term “accessibility rights” to mean the right to use, and obtain an equal benefit from, the provisions of goods, services, facilities, and accommodations generally available to the public without discrimination because of physical disability caused by providing the services from a location, or in a manner, which people cannot use because of their disability. For ease of reading, I will be using the term “services” to include goods, services, facilities, and accommodations generally available to the pubic unless the context requires otherwise. A physical barrier which prevents a person from using or benefiting from a service may be a set of steps into the building from which the service is delivered, lack of visual information displays so deaf people can understand public address system announcements, the failure to provide written information in alternate formats so blind people can use the information in the same way as sighted literate people, or the use of inaccessible buses by a public transportation company. A physical barrier arises from the interaction of an individual and the environment. Most people are not physically disabled and the world has been designed to meet the physical capacities of these people. Because accessibility is a combination ofthe environment and the person it is often difficult for people to recognize a barrier that they do not experience. It also means that people working to improve accessibility rights frequently succeed only in “getting it almost right”. For example, there is a ramp leading from the UBC Faculty Club parking lot to  the building. A visitor is enticed up the ramp to fmd a six inch curb at the top! Or, most corners in downtown Vancouver have curb cuts. However, to cross on a green light one  Introduction  3  frequently has to go down a curb cut into the moving traffic lane to get to the cross walk because there is only one curb cut to go in both directions. A wheelchair requires a space about four feet square which means that half the traffic lane is required to use the curb cut. The planners in both these cases no doubt did their best but did not quite get it right. A professional discipline most commonly referred to as “barrier free design” is being developed because of the difficultly of planning for accessibility rights. Implementation of accessibility rights requires both appropriate technical knowledge and enforcement schemes. Accessibility rights, despite the Charter and human rights legislation, are still more honoured in the breach  -  accessibility is still the exception not the rule. This claim is  supported by the results of studies on accessibility conducted by the Canadian Human Rights Commission. Although these studies were limited in their scope they illustrate what can be observed by a person going about his/her daily business and noting every time a step is encountered, an elevator is found without braille or raised numbers, or important information is given over a public address system. The fact that there is no comprehensive data base to measure improvements in accessibility since human rights legislation came into effect is itself perhaps a measure of how much accessibility rights are on the current agenda of governments and private business.  The current processes for enforcing  accessibility rights have proven themselves ineffective despite the remarkable progress that has been made in the last several years. The disabled consumer advocacy groups have chosen to use the legislation to support their efforts in political arenas to press for action on accessibility. That this is so says something about how effective the legal enforcement processes are believed to be. In Canadian Paraplegic Association v. Canada (Elections Canada)(No. 2) a number of complainants alleged that their accessibility rights had been infringed when Elections Canada failed to ensure that their polling stations for the  7.  (1992) 16 C.H.R.R. D/341.  lntroduction  4  1984 federal election were accessible. While this case was moving through the human rights enforcement process the CPA was also applying pressure on the government to amend the Elections Act to guarantee accessible polling stations. By the time a decision was handed down in the case a Royal Commission had completed its work, another election had gone by, and the Elections Act had been amended. Furthermore, the complaints of four of the individuals involved in the case were dismissed even though the polling stations those people were assigned to were not accessible. Although the Charter also guarantees equality rights for disabled people, nine years after the equality section of the Charter came into force there have been no cases directly on the issue of accessibility rights. The purpose of this thesis is to propose some ways to improve the implementation of accessibility rights. This thesis begins with a discussion of the relationship between disability and society. In order to understand the life circumstances of a disabled person it is necessary not only to understand the physical condition itself but also society’s response to disability. It is the interaction of the physical condition and the individual’s and society’s response to that condition that defmes and constrains the life circumstances of disabled people. Disability is a social construct as much as a physical condition. The functional effects of disability, even one with the same medical description, can very widely. In chapter II, I briefly review the social construct of disability, some of the statistical indicators ofthe variety of functional limitations experienced by disabled people, and the social consequences of the barriers experienced by disabled people. In planning for accessibility rights it is vitally important to remember that disabled people are as variable as any other group and this variation must be considered when taking action to augment accessibility rights. The law says disabled people have the right to equality and freedom from discrimination. In chapter III, I review the nature of equality and discuss how the concept’s elastic properties permit a wide range of interpretations.  I will show the  Introduction  5  weaknesses in the traditional concept of formal equality and argue that the notion of substantive equality is a more appropriate framework for implementing the concept of equality in Canadian society.  However, even that concept does not automatically  determine the most appropriate public policies to advance the interests ofdisabled people. Disabled people are not a homogenous group. Different people have different ideas of how to implement equality and the implementation of accessibility rights is similarly subject to debate on how it should be done. I briefly discuss four approaches to equality for disabled people, placing the most emphasise on the full integration approach which has become the foundation for current official policy and which, in my opinion, is the most suitable policy choice. I end this chapter with a discussion of the limitations to equality claims. These limitations are reflected in human rights legislation and the Charter which I consider in detail in chapters V and VI. In chapter IV, I explore the current official policy towards disabled people. Today, as a general rule, the concept of full integration of disabled people is the official policy. However, what this means in practice, how it has been implemented in daily life, and whether full integration answers the equality needs of disabled people are all questions upon which society has not yet reached any consensus. I briefly review the development of this ideology in the fields of mental health and education and then show how it has permeated into other institutions. Implementation of the new policy has been extremely slow. I briefly explore the theoretical reasons for this glacial pace ofchange. This subject is not only of interest to students of politics. In devising proposals for change to the current system of implementing accessibility rights I have taken into account the impediments to implementing a change in public policy which I discuss in this chapter. Chapter IV closes with a recognition of the need for disability consumer group political advocacy.  Disadvantaged groups have always had to lead their own struggles for  equality. While the rest of society can help or hinder, it will not do anything for disabled people unless disabled people place themselves on the political agenda and vigorously  Introduction  6  lobby for actions they want taken to benefit themselves. Human rights legislation in all Canadian jurisdictions prohibits, inter alia, discrimination against disabled people. Chapter V examines this legislation in some detail with the emphasis on accessibility rights. I review the concept of discrimination (which has changed over time), the defmitions of disability and services, the defences built into the legislation, and scope of the remedies available under that legislation. Human rights legislation is a major tool to advance the interests of disabled people and it cannot be denied that many people have benefited from it both directly and indirectly. However, there are a number of weaknesses in the legislation which goes a long way to explaining why human rights commissions have been so ineffective at enforcing accessibility rights. This chapter ends with a discussion of these problems. The Charter ofRights and Freedoms is widely seen as another major tool to enforce accessibility rights. Chapter VI examines the Charter but, because there is almost no jurisprudence relating to accessibility rights, from a somewhat theoretical perspective. Ireview the general principles ofinterpretation, the scope ofthe Charter, and the equality rights section. As with human rights legislation, the Charter includes provisions, found in s. 1, for limiting the scope of the rights it guarantees. I examine this section closely because it is particularly in relation to the courts’ interpretation of s. 1 that I see significant problems with successfully using the Charter in the context of accessibility rights. The courts have extremely wide remedial powers to enforce Charter rights. I discuss only two remedial options because, in my view, they are the most problematic for accessibility rights enforcement and because of the close relationship with principles reflected in the interpretation of s. 1. The concerns about the effectiveness of the Charter because of the interpretation of s. 1 are equally applicable to the principles which apply to remedies. As will be seen, there is significant overlap between human rights legislation and the Charter. This chapter finishes with a discussion of the overlap and some of the factors which may incline a person to choose one avenue of remedy over of the other.  Introduction  7  Federal United States legislation has prohibited discrimination against disabled  people since l973. There are many federal U.S. statutes that implement aspects of American public policy related to disabled people. I have selected only three for review and have structured my review around the themes of implementation by fmancial control, contract, and prescription. These statutes, the Rehabilitation Act, the Individuals with Disabilities Education Act, 9 and the Americans with Disabilities Act, 1990,10 are often held up by Canadians as models which should be substantially followed in Canada. I examine these Acts in detail in chapter VII because of their notoriety and because Canadians have a very limited appreciation of exactly what they do and how they do it. Although I will be adopting some of their principles in my proposals for change, they do not contain a panacea for disabled people in Canada. To show that these models have their own limitations and weaknesses I conclude the chapter with a brief summary of the results of two studies on the effectiveness of American disability legislation. In the 1 970s many disabled consumer groups began to use a “rights” argument to convince legislators to add disability as a prohibited ground of discrimination to human rights legislation. Building on that base, political action lead to the inclusion of disability in the equality rights section of the Charter. By 1985 mental and physical disability were included in all human rights legislation as prohibited grounds of discrimination. To date there has been very little jurisprudence in the area of accessibility rights. There has, however, been significant improvement in accessibility in many parts of Canada. Disabled consumer groups have used the legislation as part of a political strategy much more than as part of a legal strategy. This conscious political decision has been strongly influenced by the inherent limitations and inefficiencies of the human rights and Charter enforce-  8.  Rehabilitation Act 29 U.S.C. §79O et seq.  9.  20 U.S.C. §14O1 et seq.  10.  42 U.S.C. §12101 et seq.  Introduction ment processes.  8  In spite of the gains made by this approach, implementation of  accessibility rights is still too slow. In the final chapter I propose a number of changes to improve the effectiveness of the implementation of accessibility rights. These measures, each of which on its own would improve implementation although they would be more effective if implemented together, are the promulgation ofclear standards for accessibility, the coordination of the activities of agencies which impact on accessibility rights, and the adoption of three additional enforcement strategies. Through human rights legislation the legislators have adopted a public policy of non-discrimination in relation to disabled people subject only to a bona fide justification defence. They have failed to provide any more guidance on how this policy is to be implemented and this has contributed to the continuation of the denial of accessibility rights.  The legislators should establish a set of operating principles to direct the  interpretation of this policy so the regulators and the regulated know what is required by the law. The various agencies which have an impact on accessibility rights should be required to coordinate their activities so that the work of each agency complements that of the others. This requirement for coordination applies to each of the three stages of policy implementation, which are policy refinement, diffusion, and execution. The most effective way to implement accessibility rights is to prevent barriers before they are in place. I propose to place a clear duty of care on self-regulating professions, such as architects, transportation engineers, designers, and others who design our structures and machines to hold them accountable within their professions and in law for negligently failing to implement barrier free design in all their work. This duty would place accessibility rights on the agenda from the first day ofplanning and would distribute the cost for remedying problems among the people responsible for the problem in the first place.  Introduction  9  Institutions which regulate various industries such as transportation and construction should be the primary enforcement agencies for accessibility rights. These institutions are already familiar with the numerous systems which affect their industries and are in a position to establish and enforce accessibility standards in the ordinary course of their duties. Because they have input to every system which makes up their industry they can identify and remedy potential accessibility problems even before individuals experience a discriminatory act. To deal with the enormous stock of inaccessible structures and vehicles which currently exist I propose that a system ofmandatory adaptation planning be established to complement the current enforcement strategy contained in human rights legislation. While adaptation planning is properly criticized as an exception to the general rule ofnon discrimination, and in principle the cost ofimplementing a person’s fundamental human rights should not be an excuse to deny those rights, human rights legislation and the  Charter are influenced by the cost ofremedial action. Furthermore, the political climate of today, and the foreseeable future, is strongly influenced by fears that the various government deficits so threaten our survival that they must be tamed at almost any cost. The accessibility barriers in the existing physical stock of buildings and vehicles will not be corrected quickly or in an orderly and managed fashion using the currently existing implementation tools. I propose an adaptation planning scheme as a mechanism to implement a public policy offull integration ofdisabled people in a coherent and managed way so that the most people benefit the most quickly and the costs are shared widely by the whole society.  The Social Construct of Disability II.  10  THE SOCIAL CONSTRUCT OF DISABILiTY:  This chapter deals with the question of who the disabled are. I begin with an examination of disability as a social construct and the complexity of the group labelled “disabled”. The problem of defming who is disabled is complex and continually evolving in part because a number of social benefits derive from being labelled disabled, the nature  of disabling conditions is seen to change (eg: the concept of learning disability is expanding), and all definitions contain inherent uncertainties.  The question of  terminology is important because words have an influence on attitudes, which in turn influence the role and status ofdisabled people in society. After presenting some statistics about the population of disabled people, the social standing of disabled people will be reviewed. I will examine society’s traditional attitudes toward disabled people and how those attitudes create barriers to equality for disabled people as much as the real limitations caused by the disability itself. Finally, some of the economic consequences of disability will be examined.  A. Who are the Disabled?  i. Defmitions:  The United Nations Declaration on the Rights of Disabled Persons defmes a disabled person as: Any person unable to ensure by himself or herself wholly or partly the necessities of a normal individual and/or social life, as a result of a deficiency, either congenital or not, in his or her physical or mental capabilities.’  The World Health Organization distinguishes ‘impairment’, ‘disability’, and  1.  United Nations Declaration on the Rights of Disabled Persons, 1975. (The UN passed the Declaration on the Rights of Mentally Retarded Persons in 1971.)  The Social Construct of Disability  11  ‘handicap’. An ‘impairment’, whether permanent or temporary, includes any “disturbance or interference with the normal structure and functioning of the body, including mental function”. A ‘disability’ is “the loss or reduction of functional ability and activity that is consequent upon impairment”. A “handicap is the disadvantage that is consequent upon impairment and disability”. 2 Thus an impairment may or may not cause a disability which in turn may or may not result in a handicap. The extent to which a disability handicaps a person is a function of the social reaction to the disability and how society is structured to maximize the ability of people to pursue their interests and aspirations , as 3 well as the nature of the disability itself. Since a number of social and economic benefits, as well as detriments, arise from being labelled disabled, definition is an ongoing problem. Defmitions and methods of measuring disability and its functional consequences depend on who is making the determination and for what purpose. For example, many statistical surveys done by government agencies use a self-identification system.  For pensions, workers’  compensation, or veterans’ benefits a restrictive medical defmition may be applied to control access to the benefits. For vocational rehabilitation programs rehabilitative prospects will be determinative. For admission to (or exclusion from) public schools a medical model may be used. For some of these programs there are benefits for the individual in seeming as disabled and unproductive as possible; for others, the individual will benefit from appearing less disabled. Three factors should be considered when determining whether a person is disabled and the degree to which that person is disabled (or, using the WHO defmitions, handicapped). 1) The person must have a mental or physical impairment. The presence of a mental or physical impairment has been traditionally determined by the medical  2.  Philip H. N. Wood, World Health Organization ICD9I REV CONF/75. 15.  3.  See, for exaniple, Jacobus tenBroek and Floyd W. Matson, The Disabled and the law of Welfare, (1966) 54 California Law Review 809, at 814.  The Social Construct of Disability  12  profession but increasingly others, such as psychologists, educators, and social workers, are now involved in this determination. A complication inherent in the WHO defmition of impairment is that it is dependent on a concept of the normal physical and mental structure and functioning of the body. Especially with mental processes, the concept of ‘normal’ is, to a great extent, defmed by the society in which the individual lives. And what is considered ‘normal’ changes over time. 2) The impairment must result in a functional limitation which must be seen as negative (neutral or advantageous variations from the norm are not disabilities). 3) The functional limitation must be an impediment to activities in which the person would want to engage. This is, to some extent, a circular argument because if a person can not do something, his/her interest in doing it will be affected by the inability. Regardless, a functional limitation of a major life activity such as seeing, hearing, walking, etc. is a disability which has an adverse effect on achieving ‘life success’. The extent to which a disability adversely affects the achievement of life success is a measure ofthe impairment itself and its related functional limitations, the individual’s response to these limitations, society’s capacity to include a person with such an impairment, and the person’s and society’s determination ofhow to measure ‘life success’. Some elements of life success to consider are employment, housing, reproduction, contribution to society, and the pursuit of happiness. 4 Determining whether a person is disabled for the purposes of entitlement to a particular benefit may be done in a number of ways. 1) One could make a list of all known physical and mental impairments recognized by the medical profession. Since such a list could easily become so complex as to be effectively unusable, the list maker would have to arbitrarily limit the endless possible modifiers used to describe variations on the basic impairment. However, having made the list, a person’s entitlement to benefit from  4.  Robert L. Burgdorf, Jr. (ed.), The Legai Rights of Handicapped Persons: Cases. Materials, and Text, pp. 6-7. See also H.N. Seethamina and R.K. Majumber, NewRehabl]itation IawReqziiresa Clearer Definition of Handicap, in Allen D. Spiegel (ed.), Rehabilitating People with Disability into the Mainstream of Society, at p. 58 et seq.  The Social Construct of Disability  13  any particular program could then be determined by identifying those impairments on the list which the program administrators would accept as an acceptable qualification for participation in the program. This approach requires that an authority acceptable to the program administrators (usually a medical professional) declare the person has the necessary impairment. Ifthe person is deemed to have the necessary impairment then that person can make use of the program. 2) Or, one could gear the definition to the purpose to be achieved. For example, to determine eligibility for a sign interpreter a person could be deemed to be eligible ifhe/she needed an interpreter to understand speech. The medical reason for the need would not be considered, only the fact that the person could not communicate in the context without the interpreter. The difference between this option and the previous one is that there is no need to fit into one of the listed impairments. If a sign interpreter allowed a person to understand the spoken words when that would otherwise not be possible, then the person is entitled to the interpreter. 3) Alternatively, one could defer to professional opinion. In this case, there is no list and no reference to actual need in the real world, if the authority acceptable to the program administrators says an applicant needs a sign interpreter that is enough to obtain one from the program. 4) As another alternative, one could attempt to describe the qualifying disability by establishing a defmition within the context of the program authorizing instrument. This option, of course, takes us back to the original problem of trying to devise a suitable definition ofthe types of impairment and their degree which a person must have to qualify for the program’s benefits. There is, then, no objective external measure of disability. It is always a question of disabled for what purpose. 5 Human group labelling is a continually evolving process. Generally, any label describing a thing society considers a negative attribute comes to have a negative social  5.  Burgdorf, ibid. pp. 7-8. Marcia H. Rioux, labelledDisabledand Wanting to Work, Research Papers for the Royal Commission on Equality in Employment, p. 614.  The Social Construct of Disability  14  connotation. To avoid the negative connotation an interest group selects a new label which soon enters mainstream usage. This usage then picks up a negative connotation and so a new label is selected and the process continues. Generally, with each change of label, there will be a reduction or elimination of some negative stereotype associated with the label.  “The power of words to affect people’s lives by subtly influencing their  conceptions of reality, emotional associations, and self-concepts should not be 6 underestimated.” There is limited consensus on the appropriate term to use when discussing disabled people. While it is recognized that as between ‘handicap’ and ‘disability’ one term refers to a medical condition and the other to the social consequences of that condition, disability groups are not in agreement about which is which. Etymologically a handicap refers to a physical or mental impairment from the concept of weighting, or adding a -  burden, to make the doing, or achieving, of something more difficult while disability -  comes from ‘dis-abiity’, or ‘not able’ to do something. Thus, a person whose lower leg has been amputated but who runs and jogs with the use of a prosthetic is not ‘dis-abled’ from running and jogging but does have a handicap. 7 The use ofthe word ‘disabled’ as a noun to refer to individuals is generally rejected. A number of community groups use the term ‘handicapped’ either as a noun or an adjective with the noun ‘people’. However, presently this term is widely disapproved of and its retention in the names of groups is a matter of not changing a name selected when the word was considered acceptable. Phrases such as ‘differently abled’ and ‘physically (or mentally) challenged’ are used but are not widely preferred. Their use has not really caught on.  In the field of education the phrases ‘educationally challenged’ and  ‘exceptional children’ or ‘children with exceptionalities’ are used. On the other hand, phrases such as ‘people with disabilities’, ‘students with disabilities’, or ‘travellers with 6.  Burgdorf, ibid, p. 48.  7.  Burgdorf, ibid, p. 5.  The Social Construct of Disability  15  disabilities’ are coming into more frequent use. Today in Canada the greatest degree of consensus can probably be gained for the use of the word ‘disability’ and its derivatives to describe mental or physical impairments that result in limitations to functional ability and the phrase ‘disabled people’ to refer to people who have disabilities. The use of ‘disabled’ as an adjective emphasizes that the person is a person first and incidentally disabled. These are the terms that will be used in this thesis. 8  ii. Disability as Social Construct:  Many writers have described how the life options of disabled people are limited by society’s response to the disability as much as, if not more than, by the limitations imposed by the condition itself. A disability exists not merely as a medical pathology but as a complex combination of medical condition, individual response, social stigma, and a society designed for the statistically average person.  “...  Much of the inability to  function that characterizes physically impaired people is an outcome of political and social decisions rather than medical limitation.” 9 The independent-living movement offers a radically different view of the problem of disability and its solution. According to representatives of the movement, the problem of disability is one not only of physical impairment but also of unnecessary dependence on relatives and professionals, of architectural barriers, and of unprotected rights. In this view the pathology is not in the individual, as the medical model would suggest, but rather in the physical, social, political and economic environment that has up to now limited the choices available to people with disabilities. The solution to these problems is not more professional intervention but more self-help initiatives leading to the removal of barriers and to the full participation of disabled people in society.’°  8.  For a vigourous rejection of the use of the term ‘disabled’ see Wolf Wolfensberger, The Case Against the Use ofthe Term Visability in Spiegel, supra, fn. 4, p. 27. His argument is based on the etymology of the word and the social consequences of its use in the past.  9.  See generally Claire H. Liachowitz, Disability as a Social Construct: Legislative Roots, p. xi, tenBroek, supra, fn. 3, Burgdorf, supra, fn. 4, and Rioux, supra, fn. 5.  10. Gerben DeJong and Raymond Lifchez, Physical Disa bility and Pub]icPoiicy, Scientific American, V. 248, #6 (June 1983), p. 40 at p. 47.  The Social Construct of Disability  16  Jacobus tenBroek views disability in the following terms: For the most part it is the cultural definition of disability, rather than the scientific or medical definition, which is instnimental in the ascription of capacities and incapacities, roles and rights, status and security. Thus a meaningful distinction may be made between ‘disability’ and ‘handicap’ that is, between the ‘physical disability’, measured in objective scientific terms and the ‘social handicap’ imposed upon the disabled by the cultural definition of their estate.” -  The concept of disability as a social construct merges the notions of physical or mental ‘disability’ as a medical pathology and ‘disability’ as a social category which limits life options because society erects barriers to individual choice. It is another way of distinguishing the older terms ‘disability’, used to refer to the functional limitations resulting from the medical condition, and ‘handicap’, used to refer to the way society reacts to that condition. Some writers have coined the term ‘handicapism’ to explain the status of disabled people in society. [Handicapism’s] causes are the socially learned attitudes, preconceptions, and misunderstandings of the able-bodied; the denial of usual rights and responsibilities of other members of society; the stigma attached to disability; the expectation that disabled persons have no future in normal social life; and the inaccessibility of the labour force and the benefits that come from that.” 2 Handicapism has also been used as a paradigm to fmd linkages between the way disabled people have been marginalized as women and racial minorities have been. It emphasizes the way factors not related to the medical condition limit the life options of disabled people. The concept ofhandicapism is a paradigm through which to understand the social experience of those who have previously been known as mentally ill, mentally retarded, deaf, crippled, alcoholic, addict, elderly, deformed, deviant, abnormal, disabled, and handicapped. Handicapism has many parallels to racism and sexism. We define it as a set of assumptions and practices that promote the differential and unequal treatment of peoile because of apparent or assumed physical, mental, or behavioral differences. The concept of ‘handicap’ or ‘handicapism’ is an important tool to identify how 11. tenBroek, supra, fn. 3, p. 814. See also Rioux, supra, fn. 5, p. 614 and Myron G. Eisenberg, Cynthia Griggins, Richard J. Duval (eds.) Disabled People as Second-Class Citizens, pp. xiii xiv. -  12. Rioux, supra, fn. 5, p. 626. See also tenBroek, supra, fn. 3, p. 814. 13. Robert Bogclan and Douglas Bikien, Hand.icapism, in Spiegel, szipra, fn. 4, at p. 16.  The Social Construct of Disability  17  barriers erected by society magnify functional limitations on career and life options imposed by various disabling conditions.  Some have taken this to the extreme of  suggesting that without the (socially imposed) handicap the person is not even disabled. As part of a political process to make the argument that social barriers should not magnify the restrictions on career and life options imposed by disabilities this position may have some validity. But some people do have severely limiting medical conditions. In my view, adopting a position which attempts to deny these facts will undermine the political arguments in favour of changes in public policy which are required to eliminate the existing social barriers faced by disabled people.  iii. Group Identity:  The concept that disabled people as a whole have common characteristics which create common group interests is relatively recent. However, it was only after this idea was accepted, and disabled people formed groups based on the idea that there is a group interest that transcends interests arising from particular disabilities, that disabled people were able to achieve significant changes in public policies affecting their interests. There are a number of reasons why the formation of groups which include people with various kinds of disability, organized on the idea that there are common group interests, arose only recently, beginning in the early 1970s. First, the types of disabling conditions are diverse. Disability may arise from the chance combination of genetic material, events during the development of the fetus, disease, accident, or war. There is a tendency to see the particular condition as the group unifying factor. Organizations based on particular disabilities concentrated on improving services for the people with those disabilities. Historically, disabled people have had groups form to deal with them, or themselves formed groups, based on the particular disability. While other self-identifying groups such as women, blacks, or aboriginal  The Social Construct of Disability  18  peoples were identifying common interests transcending their diversity, groups concerned with particular disabilities were concentrating on their own particular concerns. The diversity ofdisabilities was emphasized over the identification ofcommon group interests. Second, for the great majority ofdisabling conditions the functional consequences of the disability vary widely. It is often difficult for a person to classify himJherself as a disabled or non-disabled person. A person might be of the group ‘disabled’ for some purposes but not for other purposes. A person’s functional limitations may change depending on the role then being acted out. Shifting perceptions as to whether one is disabled make recruitment to groups interested in particular disabilities difficult enough without the added problem of recognizing inter-group common interests. The negative attitude towards disabled people is frequently held by disabled people themselves. Some come to reject the negative image while others do not. This creates a tendency among many disabled people to segregate themselves from other disabled people as well as from society at large.  14  Third, for severely disabled individuals, at whatever age their disability arose, there is the problem of isolation. Historically they disappeared from the ordinary work-a-day world. Segregated and invisible, they could then be ignored as the rest of the world went on about its business, leaving the care of these individuals in the hands of professionals. They were not encouraged to speak for themselves or make demands on the care giving system. Segregation from society was also segregation from each other. Fourth, disabled people come from all other groups in society, be those groups characterized by sex, race, national or ethnic origin, religion, age, or any number of other characteristics. This diversity of origins of the group ‘disabled’ has meant that the bonds that tie individuals to the group ‘disabled’ are generally much weaker than the ties binding  14.  Diane Driedger, Organizing for Change: A Histoiy of the Manitoba League of the Physically Handicapped, p. 4. See also Myron G. Eisenberg, Disability as Stigma, in Eisenberg et al, supra, fn. 11, pp 7- 11.  The Social Construct of Disability  19  them to their origin, or source, groups. Until recently, the fact of disability alone did not seem to be enough to identify a unity of interest, to allow disabled people to see themselves as a distinct group with common group interests. Fifth, only recently have major advances in medical and rehabilitative science and technologies provided effective aids to disabled people which have increased their ability to get out in the community and to control their own lives. Only when out in the community, and able to communicate, did disabled people begin to fmd themselves and talk about their common experiences. Sixth, there are more disabled people and more in different age groups than in the past. Disabled people are no longerjust children who die young or elderly people waiting to die. As well as war, the modem industrial state causes injury to working age adults and modern medicine keeps them alive. These people were out in the community and there became enough of them to find each other and compare experiences and future aspirations. They were used to adult independence and wanted to maintain as much of that independence as possible. The traditional paradigms of disabled people did not 5 accommodate their interests.’ The characteristic common to disabled people has been, historically, that disabled people have been neglected, silenced and invalidated. 16 The unifying factor is social exclusion because of functional limitations or stigmatization.’ 7 This unifying factor is also the reason that it has been a difficult and slow process to develop the idea that  disability alone is enough to create a common interest. As disabled people began to develop a group consciousness they began to formulate theories about their role in society, to demand the right to speak for themselves,  15. Eisenberg et al, supra, fn. 11, p. xv. 16. Leonard Kriegel, Uncle Tom and Tiny Tim: Some Reflections on the Cripple as Negro, (1969) 38 American Scholar 412. Gustave Gmgras and E. David Sherman (ed.), Human Rights for the Physically Handicapped, p. 37. DeJong and Lifchez, supra, fn. 10, p. 47. 17. Richard K. Scotch, From Goodwill to Civil Rights: Transforming Federal Disability Policy, p. 5.  The Social Construct of Disability  20  and to recognize how their oppression has similarities to that of other socially disadvantaged groups. As group consciousness grows, disabled people will become even more vocal in asserting their rights and their claims of right. Their silence will end. Viewing disabled people as a coherent group with common group interests must not be allowed to mask the real differences in needs, desires, and interests of particular individuals. The wide divergence of causes and types of disability leads to a complex diversity of interests within the disabled community. Not all disabled people or groups want the same thing or have the same vision of society. Generalizations that may be made about other disadvantaged groups, which may be legitimately articulated to identify commonalities of interest and assist in developing a useful model to assist in counteracting the disadvantages experienced by them, are seldom relevant to the disabled community because of the enormous range of disabilities and personal and social reactions to them. Additionally, individual disabled people come from different communities. The interests the person has in that source community do not disappear. Individuals should not have to give up their interests arising from membership in other groups just because they become disabled. Disabled women, disabled aboriginal people, disabled blacks, etc., have multiple group interests. Disabled people who are also members of another disadvantaged group may experience discrimination by other members of their source group as well as experiencing a double victimization based on their disability and their membership in the source group.  iv. Some Statistics:  In Obstacles, the 1981 report ofthe House of Commons Special Committee on the Disabled and the Handicapped, the lack of a population based data base dealing with disabled people was identified as a significant impediment to alleviating their social and economic problems. The Committee recommended that Statistics Canada give high  The Social Construct of Disability  21  priority to the development of such a data base.’ 8 Responding to this recommendation, Statistics Canada undertook a wide ranging survey of disabled Canadians as a supplement to the Canadian Labour Force Survey conducted in October 1983 and June 1984 (the CHD Survey). 19 This survey covered the population over the age of 15 living in households, excluding residents of the Territories, Indian Reserves, the Armed Forces, and institutions which provide medical, rehabiiative, or palliative care. The survey dealt with physical disabilities and developmental and learning disabilities (but not mental illness). The survey collected data about disability in relation to age, province of residence, type and severity of disability, limitations on activities (such as travelling, self care, etc.), and participation in the labour force. Statistics Canada undertook another wide ranging survey, the Health and Activities Limitation Survey (the 1986-87 HAL Survey), as part of its efforts to develop a thorough data base on disability issues, in the fall of 1986 (for residents of households) and the spring of 1987 (for residents of institutions). ° The survey sample was taken 2 from the population of respondents to the 1986 Census who reported they were limited in the kind or amount ofactivity they could do because of a “long term physical condition, mental condition, or health problem”. ’ Data was gathered for all disabilities including 2 learning disabilities, emotional or psychiatric disabilities, and developmental delay disabilities, except mental illness among children under the age of 14 years. Another HAL Survey was taken in 1991 following the 1990 Census. All the surveys used the WHO definition of disability. Adults, but not children under the age of 14, who reported that the use of an assistive aid completely eliminated 18. Obstacles, p. 131. 19. Highlights from the Canadian Health and Disability Survey 1983-1984. 20. Highlights: Disabled Persons in Canada. 21. Ibid. p. xxxvi; Question 20 of the 1986 Census Form 2B (long Form). 22. Only the reports dealing with the disabled population by age and sex and severity of disability have been published to date.  The Social Construct of Disability  22  the functional limitation (eg. the use of a hearing aid) were not counted as disabled. Children were considered disabled if they had any general limitation such as hearing, speaking, or vision problems, or if they used a technical aid. These three surveys are the only comprehensive surveys of disabled Canadians. However, since they surveyed different segments of the population, used different survey questionnaires, and collected slightly different data (there being greater differences between the CHD Survey and the two HAL Surveys) they cannot be used with a high level of confidence to assess how the face of disability has changed over time. The statistics which follow are based on the HAL Surveys since they are the most recent comprehensive surveys, unless otherwise noted. Data from the first HAL Survey is used where the published reports provide more extensive data. Table 1 shows that in 1986-87, 13% of Canadians reported having a disability. 8% of the disabled population were 0- 14 years old, 54% were 15- 64, and 36% were over age 65. 5% of the 0- 14 age group, 10% of the 15-64 age group, and 45% of the over 65 age group reported having a disability. Considering only the 15 and over age group this survey showed 15.4% of the population reporting a disability. This accords well with a 1978-79 Canada Health Survey which showed 14.3% of this age group reporting a disability. The 1983-84 CHD Survey, which did not include mental illness, showed 12.8% of the over 15 age group reporting a disability. The 1991 HAL Survey showed a slightly higher percentage of each age group reporting a disability: age 0 to 14- 7%, age 15 to 64- 12.9%, and age 65 + 46.3%, total -  population 15.5%. The increase occurred among those reporting a mild disability and -  can be attributed to an aging population as well as changes in the survey methods. 23  23.  1991 Health andActi vity Limitation Survey, The Daily, Statistics Canada, October 13, 1992, pp. 2 and 4.  The Social Construct of Disability  23  Table 1: Total Population and Disabled Population by Age Group 24  Population 25,061,270 Disabled Population 3,316,875 (13%) % of disabled age group Disabled Population % of total age group  0-14  15-64  65+  5,325,185 21.2%  17,051,420 68.0%  2,684,660 10.7%  277,300 8.36%  1,817,580 54.79%  1,221,995 36.84%  5.20%  10.65%  45.51%  Table 2 shows the vast majority of disabled Canadians of all age groups live in households but the percentage ofdisabled people living in institutions jumps markedly for the age 65 and over group. Table 3 shows a marked increase in the percentage of severe disabilities in the over 65 age group but this increase is not as large as the jump in institutionalization of this age group. Table 2: Disabled Population by Age and Residence: 25 0-14  15-64  65+  Total Disabled Population  389,355  2,346,455  1,448,875  Disabled Population Living in Households  389,355 100%  2,297,179 97.9%  1,235,890 85.3%  49,275 2.1%  212,984 14.7%  Disabled Population Living in Institutions  --  Table 4 shows the type of disability by age group and TableS shows the types and frequency of the use of assistive devices. Tables 3, 4, and 5 show how varied disability  24. Based on information from the 1986-87 HAL Survey, supra, fn. 20. 25. Based on data from the 1991 HAL Survey, ibid Children in institutions were not included in the 1991 survey but the 1986-87 HAL Survey reported an estimated 2,400 children with disabilities in institutions (0.9% of disabled children).  The Social Construct of Disability  24  conditions are in the population and make it clear that planning for full integration will require consideration of a large number of variables. The frequency of the various types of disability, their severity, and the use of different types of assistive devices may well have an impact on the policy decisions about how, when, and where to make the necessary provisions for a full integration policy to be implemented.  Table 3: Percentage of Total Disabled Population by Age Group and Severity 26 0-14  15-64  65+  Mild  89.5  53.8  35.1  Moderate  7.6  31.4  32.5  Severe  2.9  14.8  32.4  15-64  65+  Table 4: Type of Physical Disability by Age 27 0-14 Mobility  37,350  1,047,825  752,925  Agility  15,525  916,840  621,560  Seeing  27,770  204,360  241,515  Hearing  47,970  417,235  443,620  Speaking  37,110  117,210  53,725  Other  26,235  495,565  266,855  26.  1991 HAL Survey, ibid, p. 5.  27.  Based on data from the 1986-87 HAL Survey, supra, fn. 20. The “Other” category is defined as “mental handicap, including developmentally delayed, mentally retarded” and “learning disability” for the 0- 14 age group and for the other two age groups as “learning disabled, emotional or phycological disability, or developmentally delayed”.  The Social Construct of Disability  25  Table 5: Number of People Using of Assistive Devices by Age Group 28 Type of Device  0 14  15 64  65 +  Wheelchairs  8,710  46,030  47,130  Crutches and other walking aids  5,440  142,995  231,290  Medically prescribed footwear  23,200  22,445  10,260  920  11,115  6,290  Hearing aids  11,670  67,865  164,275  Vision aids other than glasses  3,055  62,525  108,105  Brace other than braces for teeth  14,605  51,640  13,690  Other aids  24,495  47,880  19,005  Artificial limbs  -  -  Table 6, based on the 1983-84 CHD Survey, sets out the degree of dependence in performing everyday tasks in the over age 15 group. The 1986-87 HAL Survey reported on the number of people ‘getting help with’ and ‘needing help but not receiving any’ for a similar list of everyday tasks but not the level of dependency. Although the HAL Survey reported about 600,000 more disabled people in this age group, it reported substantially fewer people getting or needing help for each of the similar activities. 29 The differences are so significant they can not be explained as chance variations. The differences must reflect the uncertainty inherent in measuring many aspects of disability.  28.  Based on data from the 1986-87 HAL Survey, ibid  29.  1986-87 HAL Survey, ibid, pp. 3-11, 4-5, and 4-7.  The Social Construct of Disability  26  Table 6: Disabled Persons by Degree ofDependence Performing Everyday Activities (age 15 and over, in thousands). ° 3 Total  Dependent  Partially Dependent  Independent  Unable to Assess  Shop for Groceries or Necessities  2,448  588  320  1,309  156  Get Around in own Neighbourhood or Area  2,448  347  135  1,845  46  Do Heavy Household Chores, Gardening or Yardwork  2,448  980  350  819  222  Do Everyday Work within Home, Including Cooking  2,448  319  210  1,610  230  Get Around within own Home  2,448  67  62  2,224  18  Take Personal Care of Oneself  2,448  107  81  2,163  18  B. The Social Standing of Disabled People:  i. Deviance and Segregation:  Historically, mentally and physically disabled people have been hidden, ignored, and shunned. In Europe and North America they were harried by various Poor Laws, ’ 3  30.  Based on the CHD Survey, supra, fn. 19.  31.  tenBroek, supra, fn. 3, pp. 809-11.  The Social Construct of Disability  27  or left to the mercies of Church or religious based charity. 32 As governments became more involved with disabled people in the twentieth century the approaches and attitudes of before were simply transferred to the new custodians. With disabled people removed from society, society could go about its business without regard to their needs. The absence of disabled people from mainstream society meant that negative attitudes could continue to flourish in the absence ofany need to confront disabled people and their needs or to confront the reality that the currently able bodied could at any time become disabled. Disabled people are portrayed negatively in the media, television and movies, and literature and are subject to “prejudice resting on superstition, misunderstanding, and false concepts of capacity to work”. 33 Having no experience of interacting with disabled people “discomfort or embarrassment on the part of those with whom he or she comes into contact is an everyday occurrence of many handicapped people” Adults tend to be turned off when they see obvious disabilities, feeling guilty and embarrassed and wishing that they could get away. While the teenagers tend to feel somewhat awkward, they are more likely to be sympathetic and to try to relate to the disabled persons as individuals, or on an equal basis. 35 The history of society’s formal methods of dealing with disabled people is the story of “segregation and inequality”. These comments are, of course, generalizations and it is important to recognize  32. Disabled Persons in Canada, pp. 16 et seq. The late 19th and early 20th centuries saw a number of non-sectarian charities established: for example, Canadian Red Cross, 1896; Victorian Order of Nurses, 1898; Hospital for Sick Children (Toronto), 1875; Canadian Tuberculosis Association (now the Canadian Lung Association), 1900; Ontario Society for Crippled Children, 1922. 33. Ibid. p. 39. Life Together: A Report on Human Rights in Ontario, pp. 73 and 76. Shari Thurer, Disability and Monstrosity: A look at Literaty Distortion ofHandicapping Conditions and Bogdan and Bikien, Handicapism, both in Spiegel, supra, fn. 4, p. 51 and p. 15. 34. Burgdorf, szipra, fn. 4, p. 49 and, generally, Kriegel, supra, fn. 16. 35. Disabled Persons in Canada, supra, fn. 32, p. 43. M. David Lepofsky and Jerome E. Bickenback, in Eq ua]ityRlEhts andtbePhysically Handicapped, in Anne F. Bayefsky and Mary Eberts (eds), Equality Rights and the Canadian Charter of Rights and Freedoms, p. 323 at p. 327, reduce the influence of animus and scorn towards disabled people and emphasize the attitudes of” pity and charity” in shaping society’s relationship to disabled people. 36.  Burgdorf, supra, fn. 4, p. 49. Kriegel, supra, fn. 16. Life Together, szipra, fn. 34, p. 73. DeJong and Lifchez, supra, fn. 10, p. 47.  The Social Construct of Disability  28  factors which qualify them. The amount of segregation and inequality depended, and depends, on the nature and severity of the disability, the class origins of the person, whether the person lived in a rural or urban area, etc. Until very recent times, medical science and technology could provide profoundly disabled people only a low level of technical aid to overcome the functional limitations imposed by the disability. Segregation and isolation were a result of the combination of the lack of technical aids, social prejudice, paternalistic attitudes of superiority by the caring professions, and the refusal of society to accommodate the needs of disabled people. 37 Building up the skills of disabled people is only a partial answer to the problem of their isolation. In addition to their impainnents, disabled people may be constrained by what others permit them to do and where others permit them to be. These constraints may be the product of discomfort or of sincere concern on the part ofable-bodied gatekeepers. Whatever the motivation, the life chances for disabled people become limited by much more than their actual disabilities. 38 Marcia H. Rioux has described four paradigms commonly used to analyze the role of disabled people in society. 39 1) Disability as Sickness: A person with a disability is defmed as sick and treated accordingly; the medical profession tries to cure the sick patient; “The sick role assumes a loss of rights related to the condition or disease”. The patient looks to the doctor for direction and the doctor expects the patient to do so. The “sickness” model is seen in the pervasive use of pre-employment medicals, to have a doctor say if a person is fit to work, and the role of the profession in setting medical requirements for driver licences. Energy, both personal and social, is spent trying to “cure” the sick person instead of modifying society to allow the individual  37. Jacobus tenBroek, The l?iht to Live in the World: The Disabled in the Law of Torts, (1965) 54 California Law Review 814 at p. 816: “The custodial attitude is typically expressed in policies of segregation and shelter, of special treatment and separate institutions.” 38. Scotch, supra, fn. 17, p. 28. 39. Rioux, supra, fn. 5.  The Social Construct of Disability  29  maximum free choice. ° 4 2) Disability as Deviance: A person is seen as different in a negative way from social norms. The deviance model emphasizes social and behaviourial peculiarities exhibited by the person. This may be taken as justification to isolate the person and remove rights and responsibilities because of the inferior status of the person. There is the presumption that care and treatment can best be determined by others, ranging from family to experts. The deviant person is stripped of his/her ability to make independent judgements. ’ 4 3) Disability as Charity: In return for “being kept” by society, the disabled person must be grateful for what the care-givers choose to give. The gulf between the disabled recipient and the able-bodied giver is maximized in terms of power and social standing. The claim on society is reduced to what magnanimous people choose to give for reasons of their own. The recipient has no right to the gifts and, therefore, no legitimate claim to control or influence the givers. 42 4) The ‘Beggar’ Stereotype: This involves the untested assumption that the disabled person is destitute and lacking in dignity and pride. A beggar is seen as a person making no economic contribution and taking no responsibility for his/her own lot in life. The effect is to further stigmatize people and a self-perpetuating cycle is established which maintains the individual in his/her marginalized social 43 position.  ii. Barriers:  The barriers disabled people face include legal, social, economic, and  40.  Ibid,pp.618-619.  41.  Ibid, pp. 619. See also tenBroek, supra, fn. 3, at p. 812, and Liachowitz, supra, fn. 9, pp. 139 et seq.  42.  Rioux, ibid, p. 619. See also Kriegel, supra, fn. 16.  43.  Rioux, ibid, p. 619.  The Social Construct of Disability  30  medical/technological. With the possible exception of the last, the barriers exist primarily because it has been the able bodied who arranged the world to suit their needs. The absence of disabled people from society has allowed the others to simply not think about the needs of disabled people. Four major types ofbarriers limit the life options ofdisabled people: 1) social bias, 2) neutral standards having an adverse effect, 3) failure to accommodate, and 4) insurmountable barriers due to the disability itself. 44 Social biases against disabled people, as has been seen, are deeply ingrained in Western cultures. 45 This bias is a significant barrier to disabled people wishing to enter the mainstream of society and make their full contribution. This bias may take the form of hostility towards disabled people individually and as a group. Widely held negative stereotypes about disabled people support the stigmatisation of the group. People who are ignorant about and uncomfortable in the presence of disabled people have no inclination to inform themselves about or get to know any disabled people. Fear of  becoming disabled themselves, through disease or accident, is also a significant influence on people’s attitudes. Social bias may also be manifested by paternalism. Although this attitude is presented positively, it is still a significant barrier to the individual autonomy of disabled people. Paternalism can, of course, also mask an underlying animus. It is probably impossible to separate the influence of stigmatization and paternalism in the policy decisions of the early 20th century to institutionalise mentally and physically disabled individuals. When considering the many employment policies prohibiting the hiring of disabled people, the concern for the person’s safety and the interest in avoiding compensation claims are frequently inextricably mixed.  44.  Mark E. Martin, Accommodating the Handicapped: The Meaning ofDiscrimination unders. 504 of theRehabilitation Act, 55 NYU Law Review 881(1980). See also Yvonne Peters, Defining Equality, Patricia Hughes, Discrimination andRelated Concepts: Defmitions and Issues, and Rioux, supra, fn. 5, at pp. 6 17-8.  45. This is probably also true in most cultures but this has not been specifically researched for this thesis.  The Social Construct of Disability  31  Many facially neutral standards have an adverse effect on the opportunities of many disabled people. The essence of this type of barrier is that the standard is neutral in the sense that it makes no reference to disabled people. However, while the vast majority ofpeople are not hindered by the standard, for the disabled person it is a barrier. The classic legal fonnulation of this type of barrier is that a facially neutral standard disproportionately excludes a group of people because of their group characteristic. The barrier exists because the standard maker has chosen a standard which excludes disabled people instead of one which could achieve the same objective without restricting disabled people. Architectural barriers are prime examples offacially neutral standards which have an adverse effect on disabled people. In 1980 Michael Huck went to a theatre in Regina, Saskatchewan. Huck relies on a wheelchair for mobility. He was asked if he could transfer to a regular seat and replied he could not. He was told that the only place he would be allowed to place his wheelchair to view the movie was in front of the front row. He watched the movie and the next day filed a complaint of discrimination. The Saskatchewan Court of Queen’s Bench rejected the complaint saying that the theatre had  offered Huck what it offered the public, viz, a movie and a seat, and it was Huck’s disability that prevented him from accepting that offer, not a discriminatory act by the theatre. The Court of Appeal reversed, holding that the treatment Huck received had the effect of restricting his opportunity to enjoy the public service in a way comparable to others because of his disability. 47 The theatre was required to ensure people using wheelchairs were accommodated by providing a choice of spaces from which they and their friends could view a movie.  46.  Gnggs v. Duke Power 401 U.S. 424 (1971). The principles of adverse effect discrimination were adopted by the Supreme Court of Canada for the first time in the cases of O’MaJJey v. Simpson Sears [198512 S.C.R. 536, 7 C.H.R.R. D/3102 and Bhinderv. Canadian NationaiRai]way [1985] 2 S.C.R. 561, 7 C.H.R.R. D/3093.  47. Huck v. Canadian Odeon Theatres Ltd. (1985)6 C.H.R.R. D12682.  The Social Construct of Disability  32  In Canadian Paraplegic Association v. Canada (Elections Canada)(No.2,t 8 several people complained they were unable to vote or were subjected to differential, and in some cases, embarrassing and unsafe, treatment because their polling booths for the 1984 federal election were not accessible.  The Tribunal held that they had been  discriminated against by the failure to ensure the polling booths were accessible to people  using wheelchairs. The adverse effect stairs have on users of wheelchairs is obvious. However, there are thousands of examples of standards which adversely affect some disabled people. For example, even if a public telephone is properly signed so a blind person can fmd it and the telephone is lowered so a person using a wheelchair can reach it, a person using a hearing aid will be unable to use the standard telephone receiver because it is incompatible with the hearing aid. Compatible receivers are readily available but some decision maker must decide to install them. A related barrier occurs when a disabled person could use a service if certain elements were modified to accommodate the special needs of the person. Mark Martin refers to this type ofbarrier as a “surmountable impairment barrier”. In this situation, the disabled person could use the service if some alterations to the usual requirements were made to accommodate, or take into account, the functional limitations caused by the disability. Sometimes this requires only an exception to the general rule and sometimes it requires a permanent alteration to the environment. In 1979 Yvonne Peters wanted to visit her father-in-law who was in the University Hospital in Saskatoon, Saskatchewan. Peters uses a guide dog to assist her freedom of movement. The Hospital had a general no dogs rule and applied it to prevent Peters from visiting if she brought her dog. Regardless of whether the presence of dogs would promote patient recovery, it is a rule that most people can understand and obey without any problem. Despite her disability, Peters would have been able to complete her visit on her own but for the rule. The  48.  (1992) 16 C.H.R.R. D/341 (Fed. Tribunal).  The Social Construct of Disability  33  Hospital refused to make an exception for guide dogs. Four and a half years later the Saskatchewan Court of Appeal held that Peters had been discriminated against by the refusal of the Hospital to amend its general rule to accommodate Peters’ disability. 49 The difference between these two barriers is that the first (neutral standards having an adverse effect) is a based on passive discrimination while the second (failure to accommodate) is based on active discrimination. In the case of wheelchair access the service provider delivers the service from a particular building. Inmost cases the provider has not designed the building and simply takes it as it is. In the case of the hospital the administrators actively thought about and made a rule which they would not vary to accommodate the visitor. These two barriers are very similar and some may well argue that distinguishing them to emphasize active versus passive discrimination is not helpful. Sometimes a person’s disability is of such a nature that no reasonable accommodation is possible.  This person is facing, to use Martin’s phrase, an  “insurmountable impairment barrier”. A disability may present an insurmountable barrier because it really is insurmountable or because of a policy decision that the amount of accommodation which would be required is unreasonable.  iii. Consequences:  The consequences of these social attitudes and barriers are cumulative. For example, lack of access to education when young will adversely affect work options later; lack of access to public transportation will adversely affect work and recreation options. Disabled people are socially and economically marginalized and experience a disproportionately high rate of unemployment and poverty.  49. Peters & Sask. Human Rights Comm. v. University Hospitai Board (1983) 4 C.H.R.R. D/1464.  The Social Construct of Disability  34  Table 7 shows that in the order of one third of disabled people reported having expenses related to disability but not reimbursed by any insurance or government program. Since the HAL Survey did not report on the amount of money spent, Table 8 reflects the CHD Survey results on amounts spent but that survey did not report on the purpose of the expenditures. Note also the different total disabled populations. Table 7: Number of People Having Expenses Related to Disability Not Reimbursed by any Insurance or Government Pro gram ° 5 0-14 Total Disabled Population  15-64  65+  277,300  1,817,580  1,221,995  81,235  651,950  330,720  Prescription and Non-Prescription Drugs  41,230  465,420  207,005  Special Clothing, Aids, Medical Supplies  37,380  140,630  75,775  Non-insured Health and Medical Services  12,010  119,685  49,275  Transportation  29,250  189,645  92,505  Personal Services (Attendant, Home Care)  6,975  56,010  64,515  Modifications to Residence  4,575  Tuition or Residence Fees  10,800  Other  10,845  73,460  30,090  Total Having Expenses  According to the Canadian Health and Disability Survey , compared to the 25% 51 of the adult population (age 15 64) who are not in the labour force, 52% of disabled -  adults ofthat age group are not in the labour force. However, considering only those who were in the labour force, the unemployment rate for disabled persons was 13.3% compared to a rate of 9.9% for non-disabled persons (June 1984).  50. Based on data from the 1986-87 HAL Survey, supra, fn. 20. 51. Supra,fn.19.  The Social Construct of Disability  35  Table 8: Amount of Expenditure Related to Disability, age 15 and over: 52 15-64  65+  1,537,000  910,000  No Extra Expenses  926,000  561,000  Extra Expenses  564,000  314,000  199  201,000  138,000  $200-499  181,000  98,000  $500 999  88,000  38,000  $1,000 and over  66,000  22,000  74,000  35,000  Total Disabled Population  $1  -  -  Not Stated  Table 9 shows 61% of those reporting “some disability”, 75% of those reporting “moderate disability”, and 92% ofthose reporting “major disability” were not in the labour force. Table 9: Disabled Persons by Degree of Disability and Labour Force Status, age 15-64, in thousands 53  Some Disability  Moderate Disability  Major Disability  Degree Unknown  449  112  25  88  675  Unemployed  58  21  2  17  98  Not in Labour Force  379  183  118  85  765  Total  886  316  145  190  1,538  Employed  52. Based on data from the CHD Survey, supra, fn. 19. 53. Based on data from the CHD Survey, supra, fn. 19.  Total  The Social Construct of Disability  36  Table 10 shows that disabled people who were employed were distributed among occupations essentially in the same proportions as non-disabled people were distributed. The exceptions were the sciences where disabled people were represented at 2.9% compared to 5.3%, fishing/forestry/mining where disabled people were not represented compared to 1.4%, and in agriculture where disabled people were represented at 8.8% compared to 4.6%. Table 10: Disabled Employees by Major Occupational Grouping TM Disabled (thousands)  Disabled (% of total group)  NonDisabled (thousands)  NonDisabled (% of total group)  Managerial/Administrative  48  7.1  916  8.8  Sciences  20  2.9  552  5.3  Teaching  23  3.4  491  4.7  Artistic/Recreation  10  1.5  157  1.5  4286  41.0  487  4.6  151  1.4  Clerical/Sales/Services Agriculture Fishing/Forestry/Mining  285  60 --  42 8.8 --  Processing/Assembling  85  12.6  1242  12.0  Construction  33  4.8  593  5.7  Transportation/Materials/ Handling  46  6.8  661  6.3  Others  65  9.6  884  8.5  Totals  675  100  10,420  100  The social and economic status of disabled people is currently unsatisfactory from  54. Based on data from the CHD Survey, ibid  The Social Construct of Disability  37  the point of view of disabled people themselves and in a society which claims to place a high value on equality and human dignity. In the next chapter I will discuss the nebulous concept of equality and consider what equality for disabled people might look like. Because there is disagreement among disabled people about the exact nature of equality, as there is among everyone else, I will be using the general phrase “interests of disabled people” to reflect the desire for change without any implication that the interests of all disabled people are the same. It is indeed because there are many competing concepts of equality and disagreements about the best way to achieve equality that it is particularly difficult to reach consensus on public policy.  Equality and Non-Discrimination  38  flJ. EQUALITY AND NON-DISCRIMINATION:  Canadian law has not developed a definite philosophy of equality.’ Although a concept of substantive equality has been utilized by the Supreme Court of Canada, and there are signs that it will become the theory of choice when interpreting the Charter, 2 there is no certainty that it will survive the inevitable attacks upon it 3 nor that it will spread to lower courts, and still less that it will become a basic principle upon which politicians and bureaucrats fashion public policy.  This chapter will review the traditional conimon law notion offormal equality and some ofits weaknesses. The developing concept of substantive equality will be reviewed.  Since simply adopting a theory of substantive equality does not completely describe the face of equality for disabled people in modern Canadian society, some of the ways in which substantive equality may be implemented will be canvassed. The full integration equality paradigm will be reviewed in detail and recommended as the most appropriate since it calls for a society based on inclusion, not exclusion, and respect for individual choice within the context of communal responsibility for all members of society. The chapter ends with a briefreview ofmechanisms which control and limit the equality claims of disabled people.  1.  Honourable Kenneth H. Fogarty, Equality Rights and Their Limitations in the Charter, p. 1. See chapter VI for a review of the current interpretation of the equality rights section of the Charter. The Supreme Court of Canada has devised a concept of equality based on the absence of discrimination because of a ground enumerated in s. 15(1) or analogous to such a ground. However, the parameters of this description of equality are still unsettled. Despite the pronouncements of the Court to date, in my view the definition of equality in Canadian law is still sufficiently fluid that Fogarty’s observation remains accurate.  2.  Shelagh Day, The Process ofAchieving Equality, in Human Rights in Canada, p. 17 at p. 19: “... a substantive model of equality has been developed over the last five years in human rights and constitutional equality rights jurisprudence.”  3.  See generally Joel Bakan, Constitutional Interpretation and Social Change: You Can’t Always (Jet What You Want (Nor What You Need), (1991) 70 Canadian Bar Review 307.  Equality and Non-Discrimination  39  A. The Elastic Concept of Equality:  Equality is an ancient concept, dating back at least to classical Greece in the western tradition. It is an essential philosophical concern and a basic tool of political propaganda. Equality has attracted the attention ofmajor philosophers throughout the ages and the debate has still not reached a defmitive conclusion.  Because of its  philosophical elasticity, equality has been, and remains, a potent political concept used by those supporting the status quo as well as those urging more or less radical change. Peter Weston has argued that equality is an empty concept because one must specify or assume some standard against which things are to be compared and the concept of equality does not prescribe that standard of measurement. Thus, in itself, the concept provides no guidance to decision making. Since the standard must be found in some other rule, the rule of equality is superfluous. 4 “To the extent that a statement of equality is framed in non-tautological terms, it will, in Professor Weston’s terms, ‘logically entail  (and necessarily collapse into) simpler statements of rights’.” 5 Despite the philosophical concerns of Westen and others, I think it is because equality is not a self-defining concept that it is enlisted in support of widely differing political views. As Kenneth Karst has said, equality is not a philosopher’s universal, but a culturally specific and evolving ideal. The ideal not only h substantive content; it ia a cluster of substantive values, with moral underpinnings solidly based in a particular society’s religious and  4.  Peter Westen, The Empty Idea ofEqziaiity, (1982), 95 Harvard L.R. 537 and To Lure the Tarantula from its Hole: A Response, (1983), 83 Columbia L.R. 1186.  5.  Marc Gold, Moral and Political Theories in EquaiityRightsAdjudication, in Joseph M. Weller and Robin M. Elliot (eds.), Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms, p. 85 at p. 91. In a similar vein, but criticising the concept of “rights”, Mark Tushnet, in An Essay on Rights, (1984), 62 Texas L. R. 1364 at p. 1379 argues the concept of rights can not justify a claim for some desired objective because rights are essentially indeterminate: “Fundamental indeterminacy occurs because rights have a social context. When we try to specify a particular right in some localized area, we discover that we have committed ourselves to a description of an entire social order.” See also Elizabeth Kingdom, What’s Wrong with Rights: Problems for Feminist Politics of Law, in which she argues rights discourse can not advance the feminist agenda and may even be a hindrance.  Equality and Non-Discrimination  40  philosophical traditions. 6 The degree of consensus on the meaning of equality varies among societies and over time. Societies in which there is a high degree of consensus on the substantive content, in other words, which have agreed on the cluster of values incorporated into the concept, will be stable societies. In those circumstances the appeal to equality strikes a popular chord and reinforces the status quo. Societies in which the selection of values which provide the substantive content for the concept is in dispute are societies in a state of change. 7 The concept of equality is an essential element of our culture and we are in state of change. it is, therefore, necessary to argue for a formulation of the concept which will advance the interests one seeks to advance. For any theory of equality to be useful in informing debate about social policy it must be theoretically sound, useful for formulating social policy, and “embedded within an overall desirable context, rather than seen as the only important goal.” 8 Section 15 of the Charter ofRights and Freedoms 9 speaks of “equality” whilst most human rights legislation’° speaks of”prohibited grounds of discrimination”. Does  6.  As cited by Lynn Smith, A New Paradin for Equaiity Rzghts, in Lynn Smith et al. (eds.), Righting the Balance: Canada’s New Equality Rights, p. 353 at p. 361. See also Rosalie S. Abella, The Social and Legal Paradigms ofEquality, (1989) 1 W.R.L.S.I. 5 at p. 5: “[equality] cannot be constructed in the abstract, but rather derives contextually from its social and political antecedents”, and Margrit Eichler, Applying Equality to Employment, in Research Studies of the Commission on Equality in Employment at p. 207: “... equality is not a value that is meaningful outside of a societal context.”  7.  See generally Fogarty, supra, fn. 1.  8.  Eichler, supra, fn. 6, at p. 207, uses the example of the equality between men and women in the society described in 124 by George Orwell.  9.  Part I of the Constitution Act, 1982 [enacted by the Canada Act, 1982 (U.K.), c. 11] (hereafter referred to as the “Charter”): 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, age or mental or physical disability.  10. Except Ontario where the Human Rights Code, R.S.O. 1990, c. H-19, uses an equality phraseology. For example, s. 1: Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin,  Equality and Non-Discrimination  41  a different result occur if an issue is viewed as a demand for a right to “equality” or as a demand for a right to “not be discriminated against”? In practice the answer is “no”. Anne Bayefsky argues that “equality  ...  and non-discrimination are positive and negative  statements of the same principle.” ’ Thus, the remedy that is sought from a complaint 1 under human rights legislation should be, in effect, a step towards greater equality for the individual complainant or the group affected by the substance of that complaint.  i. Equality at Common Law (Formal Equality):  Aristotle set forth the proposition that equals should be treated equally and unequals treated unequally in proportion to their mutual inequality. Aristotle recognized that his approach failed to establish criteria for determining who was equal to whom, or what factors should be considered in assessing whether two people were equal or unequal to each other and he did not try to provide them.’ 2 The political and social consequences of his theory were an “elite meritocracy” 3 within a society exhibiting gross inequality. Despite its short-comings, the Aristotelian ideal has informed dominant Western philosophies of equality up to the present day. it is also the philosophical underpinning of the concept of equality as it has been developed in the common law tradition.  citizenship, creed, sex, sexual orientation, age, marital status, family status or handicap. 11. Anne F. Bayefsky, The Orientation ofSection 15 ofthe Canadian Charter ofRihts and Freedoms, in Joseph M. Weiler and Robin M. Elliot (eds.), Litigating the Values of a Nation: The Canadian Charter of Rights and Freedoms, p. 105 at p. 114. She refers to the Inter-American Court of Human Rights case, Amendments to the Naturalization Provisions ofthe Constitution ofCosta Rica, (1984), 5 Human Rights L.J. 161 at 183, per Piza Escalante J.: “it appears clear that the concepts of equality and nondiscrimination are reciprocal, like the two faces of one same institution. Equality is the positive face of nondiscrimination. Discrimination is the negative face of equality.” See also Marc J. Bossuyt, The Principle ofEquaiity in Artide26 ofthe International Covenant on Civi] and Political Rights, in de Mestral et al. (eds.), The Limitation of Human Rights in Comnarative Constitutional Tw, 1986, p. 281 at p. 283, where he says: “The non-discrimination principle is merely the negative formulation of the equality principle.” 12. Fogarty, supra, fn. 1, p. 1. Anne F. Bayefsky, Defining Equaiity Rigbts, in Anne F. Bayefsky and Mary Eberts, (eds.), Equality Rights and the Canadian Charter ofRights and Freedoms p. 1 at pp. 2-3. 13. Abella, supra, fn. 6, at p. 9.  Equality and Non-Discrimination  42  At no time did the common law take into account the reality that society was not, and is not, composed of individuals of equal power and wealth. “The common law’s equality was purely formal... Thus, all individuals were treated as equals by the law, while they lived their lives in relations of radical inequality.” 4 Formal equality refers to equality in the form of the law and it is variously formulated as requiring that like be treated alike and unlike unlike, or that those who are similarly situated be treated the same. According to this theory, equality obtains ifthe law, in its form, treats men and women the same, or able-bodied and disabled persons the same, unless they are differently situated. 15 Formal equality is a process oriented concept variously described as “equality of treatment” or “equal treatment”. Another variation is “treatment as an equal” which implies “using a more diffuse norm  ...  to recognize the inherent worth and dignity ofmen  and women and an entitlement to appropriate treatment accordingly.” 6  ii. The Failure of Formal Equality:  Formal equality is incapable of achieving an equal distribution of benefits and opportunities among the members of society, or even, more modestly, eliminating discriminatory barriers, for two main reasons. First, formal equality defmes equality as sameness and difference not dominance and subordination and, therefore, ignores the cause of inequality. This theory is based on the false belief that individuals have equality of opportunity (and inequality isjust a lapse from this norm) and that those differences which are considered to matterjustify unequal treatment. In fact, most individuals make equality claims because their group membership  14. Bakan, supra, fn. 3, p. 309. 15. Day, supra, fn. 2, p. 18. 16. Mary Jane Mossman, Gender, Equality, and the Charter, in Research Studies of the Commission on Equality in Employment p.299 at p. 300. Contrast Ronald Dworkin’s formulation, in Taking Rights Seriously, 1977, that treatment as an equal means being treated with equal respect and concern.  Equality and Non-Discrimination  43  has caused them to be in a subordinate position and to be treated less favourably. In the context of formal equality they must argue their difference is not a difference that should matter, instead of recognizing that the difference is due to their subordinate position in society and arguing they should not be in a subordinate position.’ 7 This leads to the second problem. When making a claim for equal treatment one must compare oneself to someone else who becomes the norm against which your claim to equality is measured. In the context of sex discrimination, although described as sameness, it is really maleness that is the norm and femaleness is seen as deviation from the norm. Thus, when inequality is caused by a biological or social fact affecting only women there can be no remedy because there is no legal inequality. With formal equality disadvantage is made to disappear and this is justified and perpetuated because there is equality as long as people are subject to the same law and administrative procedures.’ 8 The same applies to comparisons made on other group factors such as race or disability.  iii. Substantive Equality:  An alternative conception of equality, one which is more useful to advancing the equality claims of disadvantaged groups, including disabled people, is the theory of substantive equality. ‘ Substantive equality means equality in the substance of one’s condition... [It requires] real remedies for conditions of inequality. 20  17. Day, supra, fn. 2, at p. 18. 18. Ibid, at p. 18. See also Ann Scales, Towards a Feminist Jurisprudence, (1981), 56 md. L.R. 375. 19. Various other terms have been used to describe the same concept: Eichler, supra, fn. 6, “equality of result”; Katherine Swinton, Restraffits on Government Efforts to Promote Equaiityin Employment: Labour Relations and Constitutiona] Considerations, in Research Papers of the Commission on Equality in Employment, “equality in output”; Mossman, supra, fn. 14, “equality of outcome”, specifying that the standard to be used not be based on the male norm. 20. Day, supra, fn. 2, at p. 19.  Equality and Non-Discrimination  44  As a legal paradigm of equality this concept requires, in considering whether a particular law or practice violates the principle of equality, that one begin by asking if it has an adverse impact on the complainant. Then one must determine whether its purpose or effect is to reduce social stratification or disadvantage. If it does, it moves towards equality and no violation of the principle ofequality exists. The same is true if it is neutral as to disadvantage. If the measure widens the gap unjustifiably it moves away from equality and violates the principle of equality. 21 Of course, unless one assumes there can  never be a justification for widening the gap, the word “unjustifiably” presents the same philosophical conundrum: when is it justifiable to widen the gap? Substantive equality can be sub-divided into weak and strong senses. In its weak sense it can require temporary measures to limit program benefits to a particular disadvantaged group or provision of longer term supportive activities such as child care or mentoring services or, in its strong sense, it may demand the long term redistribution of wealth and opportunity so as to bring about the desired objective. In the weak sense it may mean taking account of a group factor such as disability by eliminating artificial barriers or providing limited and inexpensive assistance to permit equality of result. 22 In the strong sense it may mean the imposition of quotas or redirecting significant resources to enable disabled people to enter mainstream society. 23  21.  Based on Abella, supra, fn. 6, at p. 13.  22.  For example, in Huck v. Canadian Odeon Theatres Limited(1985), 18 D.L.R. (4th) 93, 6 C.H.R.R. D/2682, the Saskatchewan Court of Appeal upheld a Board of Inquiry order that Odeon Theatres had to modify its cinema so that patrons who use wheelchairs have a choice of places to sit in the cinema and designed so that they can sit beside non-wheelchair using companions. The Employment Equity Act, S.C. 1986 c.-31, is found upon this weak sense of substantive equality. It requires employers to devise an “action plan” to identify and remove artificial barriers to employment of target group members and the development of goais and timetables to attain a representational workforce. It does not require or authorize employment quotas.  23. In Canadian NationalRazlway Co. v. Canada (Canadian Human Rights Comrnission)(Action Travail des Femmes) [1987] 1 S.C.R. 1114, 8 C.H.R.R. D!4210, the Court upheld a Tribunal order which combined examples of both weak and strong substantive equality. Reflecting the weak sense the Tribunal ordered CNR to stop using the discriminatory Bennett Mechanical employment test, apply physical test requirements applicableequally to women and men, and to revise its system of publicizing employment opportunities. Reflecting the strong sense, it also upheld the order which required CNR to hire one woman for every four hires until women represented 13% of the workforce which was their  Equality and Non-Discrimination  45  Affirmative action, a particularly useful tool for promoting equality, is particularly difficult to reconcile with formal equality theory. Professor MacKinnon has said using formal equality in the context of affirmative action requires contorting logic to the breaking point: giving a reverse preference is still a preference on the basis of race or sex, etc.  24  Substantive equality rejects the formal equality ideal that decision making should take no account of race, sex, disability, etc. Abella, attempting to dismiss the conflict between group rights and individual rights in the context of substantive equality theory, says that individuals experience discrimination because of group characteristics. She attempts  to  make  the  conflict  disappear  by  arguing  that:  The group becomes an evidentiary collaborator in assessing the merits of an individual’s claim. It is the individual’s right to equality, notwithstanding membership in a group, but also the individual’s right to equality based on membership in a group... The question is whether equality exists, not whether individual or group rights prevail. 25 MacKinnon takes a blunter, and more clear cut, approach. She argues that formal equality should be openly rejected and dismissed as being an inappropriate theoretical  basis for structuring society. Using substantive equality theory allows one to recognize the socially subordinate status of some groups, defmed by their disability or sex, etc. Affirmative action, as a remedy for inequality, is coherently integrated with this theory. The white, able-bodied, heterosexual male can not claim an individual right to equality based on the ideal that everyone should be treated the same when he lives in an unequal society. He may have to make his contribution to correcting the age old dominance his group has enjoyed. “To intervene to alter this balance of advantage is not discrimination  representation in the labour market. 24. Catherine A. MacKinnon, Sexual Harassment of Working Women, p. 119. 25.  Supra, fn. 6, at pp. 14-5.  Equality and Non-Discrimination  46  in reverse, but a chance for equal consideration for the first time.” 26 Substantive equality, or “equality of outcome”, .recognizes the possibility, indeed the inevitability, of inequality of treatment in the achievement of equality of outcome. It rejects “fair play” as an objective and adopts instead “fair shares”. it is implicit in the objective of equality of outcome that some inequality of treatment may occur in achieving the ob,jective, but that the significant value for equality is substantive, not procedural. 2 ...  iv. A Role for Both Formal and Substantive Equality:  While substantive equality is an approach which can create real change in society, formal equality still has its proper role. 28 A person subject to negative differential .  treatment because of some arbitrary, unreasonable, or unfair action by some regulation, public official, or private enterprise should be able to claim equality of treatment. For example, a white middle aged man who is refused ajob because the personnel officer just doesn’t want to hire a man should have a remedy for such a discriminatory (arbitrary) rejection.  That remedy would be based on a claim to formal equality.  This is  fundamentally different from a man who is refused a job because the employer has a carefully crafted affirmative action program to overcome a history of discrimination against women. “Substantive equality would come into effect where a claim is made that a particular law [or practice] perpetuates socio-economic disadvantage.”  26.  Supra, fn. 24, at p. 119. She uses the phrase “differentiation theory” for formal equality and “sex inequality theory” for substantive equality. According to Marc Bossuyt, supra, fn. 9, at p. 285 the International Covenant on Civil and Political Rights permits the remedial measures part of affirmative action but “in no case may someone be deprived of a basic right under the pretext that doing so would help particular backward groups better to overcome the consequences of previous discrimination.” This would suggest that the numerical remedies (also known as quotas) part of affirmative action programs would not find support under this Covenant.  27. Mossman, supra, fn. 14, p. 300. 28. Yvonne Peters, Defming Equality, Council of Canadians with Disabilities, formerly known as the Coalition of Provincial Organizations of the Handicapped, (COPOH), p. 11. 29. Ibid, p. 12.  Equality and Non-Discrimination  47  The adoption of a theory of substantive equality does not imply a double standard. Clearly, one of the primary goals of disabled people is to be integrated into the community. This involves taking the same risks and same responsibilities as everyone else. A substantive approach to equality does not negate this goal. Instead, it provides a mechanism for asserting such demands as reasonable accommodation, affirmative action programs, special tax deductions and access to the built environment. A theory of substantive equality legitimizes the goal of ensuring equality of results. ° 3 The defmition of equality adopted for this thesis is situated within the context of a liberal democratic/mixed economy philosophy, modified, as suggested by Ronald ’ to incorporate the responsibility of the community for the welfare of each of 3 Dworkin, its members. The interests of disabled people are promoted by principles which empower individuals so they can make real choices about their own life options. Individual choice, including the right to try and fail, is essential for those who have traditionally been controlled by others and limited in life options by an uncaring society. The theory, or concept, of substantive equality meets these criteria. Substantive equality seeks to achieve the reduction of economic stratification and disadvantage experienced by certain groups so that each individual may maximize the opportunity to share the benefits and opportunities our society offers. It is an approach that is able to take into account the reality that the functional limitations ofdisabled people may require different treatment to achieve true equality and, through its continuing ties to liberal political theory, recognizes the autonomy interests of individual disabled people.  30. Ibid,p.11. 31. Supra, fn. 14. Dworkin criticises what he calls the “ruling theory of law” for its denial of any role for the collective interest and reliance on legal positivism and utilitarianism. He proposed a liberal theory of law which would give a primary place to individual human rights which, he said, could not be surrendered by decision of the majority for the common good. He argued the fundamental right of all people is the right to equality, which he defined as the right to be treated as an equal, i.e., with equal respect and concern, not a right to equai treatment whereby each would receive equivalent benefits, burdens and opportunities. People have this right not because of a social contract but as an essential part of their nature.  Equality and Non-Discrimination  48  B. Approaches to Equality for Disabled People:  A failure to identify and adopt a particular approach to equality seriously diminishes the effective implementation of public policy dealing with the interests of disabled people. Stephen Percy, in his book dealing with the implementation of disability policy in the United Sates, reviews the three equity paradigms which have been used or argued for at different stages in the history of the implementation of s. 504 of the Rehabilitation Act,  J97932  These paradigms were equality as equal treatment, equal  access, and equal outcome. The first two paradigms are manifestations offormal equality theories while the third reflects principles of substantive equality. He argues that the implementation of the civil rights policy related to disabled people in the U. S. was confused by a failure to agree upon which principle of equality should be used. The first paradigm, equity as equal treatment, is based on long standing notions of formal equality. All people are to be treated equally without regard to their individual differences; neutral standards are to be applied equally to all. The second approach, equality as equal access, is a modification of the equal treatment approach.  It  incorporates the need to remove obvious barriers (obstacles) to access (such as architectural barriers) and then requires the application of the same neutral standards to everyone. The third approach, equal outcomes, calls for removal of artificial barriers and, if needed to equalize outcomes, then the application of unequal treatment to disadvantaged individuals of the target groups in question so as to equalize the outcome of particular conditions between the target and non-target groups. For example, to equalize the income distribution as between the group disabled and the group not-yet disabled, quota based affirmative action in employment may be required. Equal treatment was rejected very early but the choice of equal access or equal  32. Stephen L. Percy, Disability. Civil Rights. and Public Policy: The Politics of Implementation. The discussion which follows is based on pp. 245-247 of this book.  Equality and Non-Discrimination  49  outcome has not been clearly made and policy implementation has been adversely affected by on going argument about which option should be selected. In many cases a point somewhere between the two (idealized) paradigms has been chosen in designing specific implementation policies. Cost has been used to determine the point along the equal access-equal outcome continuum at which the objective of equality was considered to have been taken far enough. In summary, Percy observes: Often, then, policy debates about strategies and objectives for implementation of disability rights revolve around differing perspectives about the appropriate equity approach to be used in implementation. As would be expected, handicapped groups generally push for interpretations that favour an equal outcome approach, while regulated clients, seeking to minimize regulatory impacts, prefer an equal access approach. Debates about which approach is most appropriate will continue into the future, because ofdifferences in the decision premises of affected parties and ambiguities in both statutes and administrative regulations. Until such time as policymakers clarify basic issues about equity approaches, thereby elucidating the bounds of disability rights mandates, policy debates will continue and affected parties will continue to use the full range of institutional arenas to affect the direction of implementation policies. 33 The principles upon which disability policy in Canada may be based can be found in the Constitution and provincial human rights legislation. Section 15 of the Charter sets out the constitutional guarantee of equality. As the supreme law of Canada it may be said to be the foundation upon which all public policy must be based. David Lepofsky suggests that this section imposes three obligations on 34 First, when devising or implementing a government program or activity, governments. disabled people may not be singled out for disadvantageous treatment  -  whether by  imposing burdens on them not imposed on others or by restricting them from benefits or  33. Ibid, p. 247. It is interesting to note that the Americans With DisabilitiesAct of1990 is premised on a full integration model but has controlled the scope of this principle by setting out clear cost and time lines to modify the declared policy. Canadian law and policy has not grappled openly with this issue yet, although decisions by many human rights commissions clearly indicate that expansive statements of principle are severely constrained by cost concerns. 34.  M. David Lepofsky, EqualityRights for Handicapped Persons in the Charter: Putting theAccent on IndividualAbiity, a paper prepared for the Cambridge Lecture Series, 1986, PP. 28 et seq..  Equality and Non-Discrimination  50  restricting their right to the opportunity to benefit from a program if an individual disabled person wants to. It is to be noted that this principle does not preclude granting benefits only to disabled people. Second, the government may not neglect disabled people. Where a disabled person is otherwise qualified to benefit from a program but is unable to do so because of the nature of the person’s disability, the administrators of the program must reasonably accommodate the disability so the person can benefit notwithstanding the disability. Included in this type of accommodation is the requirement that individuals be assessed on their own merits and not be subject to irrebutable presumptions of incapacity. Third, the government may not forget disabled people. This creates an obligation to provide the opportunity for disabled people to be heard and an obligation to take their interests into account when fonnulating policy. Equality is not only an elusive concept; it is also not the only value relevant to disabled and not-yet-disabled people. To consider only one example, while some disabled people may argue that a fully integrated city public transportation system is the only acceptable face of equality, others may argue that there are significant advantages to the door to door service provided by segregated paratransit services. In the winter, in some parts of Canada, a fully integrated system would be useless without immediate snow removal to allow the person to get to the bus stop. Some disabled people may consider the cost of full integration an acceptable social expense while others may believe that the less money in the government’s hands the better for the country. While both sides of this dispute may be arguing for equality, the precise manifestation of that equality may well be influenced by such considerations as the role of government and the level of taxation that is appropriate. The concept of substantive equality, which I argue should be the basic principle upon which disability policy should be based and judged, does not of itself determine the face of equality in the work-a-day world. Adopting the theory of substantive equality is only the first step in determining how to describe equality for disabled people in practice.  Equality and Non-Discrimination  51  If substantive equality means only equal outcomes then segregated services may well achieve equal outcomes, if the expected outcome of a bus ride is to get from point A to point B then a segregated transportation system can achieve that result as well as a fully integrated one. Whether the outcome of taking a university class by video connection would be the same as attending the class would no doubt be a matter of serious debate. Substantive equality may be achieved in a number of ways depending on the circumstances of each situation, the individuals involved, and one’s defmition of “substantive equality”. It may be reasonable to distinguish intermediate steps from the eventual ideal end point. The four processes, viewed as intermediate steps or end points, which are discussed below may be equally suited to achieving the end product of substantive equality.  i. Separate but Equal:  One option for implementing an equal outcome (substantive equality) policy is to consider the end result and measure equality at that point. In this approach, the outcome of transportation is to be moved from point A to point B. Special transportation services can be designed to achieve this objective.  A balancing of inconveniences must be  undertaken to measure the equivalency of the mode of transport. Door to door service offers the advantage of not having to get oneself to and from the bus stop. Against this advantage, the disadvantage of uncertain pick up time must be balanced. The equality is  seen in the equal fmal outcome which occurs by different means.  ii. Separate and Special:  There are circumstances in which special services or facilities available only to disabled people are appropriate. An example of this is Noble House, a housing co  Equality and Non-Discrimination  52  operative in Vancouver. The residents of this co-op require 24 hour a day individual care.  They had been housed in an open ward at a long term care hospital where they were subject to a modified hospital ward environment. Special residences with electronic equipment designed to control TV, radio, doors, blinds, etc. were built and a full time staff of care givers is available. The residence, like a co-op housing project, is controlled and administered by the residents. This housing service is a special program designed for certain disabled people to allow them the most freedom ofchoice and control as possible. The equality is that the service provider has increased the life options of the disabled people by providing a special service even though it is designed to be separate from other people and available only to disabled people.  iii. Comparable Standards:  A comparable standards approach, which may also be described as program or component accessibility, does not assume a service is to be provided separately This .  approach considers whether a program, viewed as a whole, is accessible, not whether each location where the program is delivered is accessible. In the United States, program accessibility was equated with the idea of reasonable accommodation pending the time when full integration was possible. For example, if a B.A. program required a particular class which was normally delivered in an inaccessible building and the cost of renovation was judged too high, it would be sufficient to provide the required class somewhere else for the disabled student. The difference between this and the separate but equal approach is that the separate but equal approach views equality only at the end point of the process while the comparable standards approach considers each of the steps to the end point. It seeks to maximize integration within the various steps but permits some different treatment if the totality of the program can be seen to be comparable.  Equality and Non-Discrimination  53  iv. Full Integration:  The full integration approach sees disabled people interacting side by side with non-disabled people: in every circumstance disabled and non-disabled people are integrated in the pursuit of the common objective be it moving from point A to B, attaining an education, or gaining a livelihood. The traditional paradigms of disability as described by Rioux, supra, chapter II, are being replaced by this new paradigm of integration. The integration paradigm proposes a public policy which maximizes a disabled individual’s opportunity to be re established in his/her community of origin.  This paradigm, often referred to as  “Independent Living”, 35 presupposes that disability is not primarily a medical condition but is a combination of a medical condition and the socio-economic status of disabled people. This model is based on the principles of: -  demedicalization:  It challenges the assumption that the management of a  disability should be conferred on the medical profession once the acute care stage is complete. This acts to counteract the ‘sickness’ model which assumes the condition is temporary and can and should be cured to make the person fit society. It emphasizes independence and self-sufficiency (personal control and responsibility). -  deinstitutionalization and normalization:  It challenges the practice of  warehousing disabled people and replaces that with consumer controlled community based living arrangements for those who cannot live alone or need continuing support, and accessible housing and home care support for those who need a lower level of assistance.  35. Disabled Persons in Canada. These terms were in use in the 1970s and even earlier. See, for example, Gustave Gingras and E. David Sherman (eds.), Human Rights for the Physically Handicapped, and Jacobus tenBroek and Floyd W. Matson, The Disabled and the law of Welfare (1966) 54 California Law Review 809.  Equality and Non-Discrimination -  54  mainstreaming: Non-segregation is the goal; moving people from institutions to  the community and integrating them into a society which makes the minor accommodations required to enable disabled people to take part in community activities. It accepts the dignity of risk and possibility of failure as basic human rights. -  consumerism: It sees the consumer who requires the support service assume  responsibility for determining product (service) reliability, acceptability, and desirability.  It assumes the consumer (or his/her advocate) is best able to  determine his/her own needs. 36 Although written in the context ofdevelopmentally impaired people, the following is an apt description of the integration model: Any new approach that successfully aims to include people with handicaps fully  within society will also guarantee their basic right to maximize self-determination and personal autonomy. It will make deliberate efforts to accommodate their personal preferences and aspirations, and will put control in decision-making back into their hands and into the hands of their family and friends. It will also make provisions ensuring that the individual and his or her personal network receive the supports they need, so they can arrive at informed and prudent decisions about how to satisfy individual needs in a natural and cost-effective way in the community. In order to achieve these goals, there needs to exist more flexible structures which will address needs on a person-by-person basis. These structures will have to be accountable to individuals and their networks, and will regard their needs before those of the service systems. 37 Segregated services foster isolation, rejection, loneliness, oppression, exploitation, anxiety, and fear. Apart from the benefits for the individual disabled person, the integration approach benefits the community which gains from the rich and diverse contribution of all individuals; conversely, the community is diminished if some of its members are excluded. “Inclusion” (integration) is a value based approach designed to  36. Marcia H. Rioux, Ia belied Disabled and Wanting to Work, Research Studies of the Commission on Equality in Employment at pp. 626-7. See also tenBroek, ibid, at p. 841: Public policy toward disabled people should be based on a policy of “integrationism”: the article discusses how tort law affects the ability of disabled people to access transportation, public services, etc. 37.  Brian Salisbury, Jo Dickey, and Cameron Crawford, Service Brokerage: Individual Empowerment and Social Service Accountability, p. 7.  Equality and Non-Discrimination  55  avoid devaluing people and continuing a permanent underclass in society. 38  C. Limitations to Equality Claims:  A disabled person who relies on the use of a wheelchair may make a claim to a right, in the name of equality, to be able to use a municipal transportation system in the same way as people who can walk onto the buses. This would require that all the buses be wheelchair accessible. Other users ofwheelchairs may argue that they prefer a separate paratransit system. These users may be criticizing the first equality claim because they have a different view of what form equality should take. Other residents may agree with the principle but argue that costs will be prohibitive. This criticism is based on the claim  that other equally valid interests outweigh the claim to equality. Still others may argue that the claim to the right is invalid; that the alleged right should not be recognized. After a claim of right has been recognized as valid, inquiring into the limitations which may be placed on that right is another way of asking when equality rights may be subsumed to other rights and interests of individuals and society. Pursuing a claim to a right to equality under the Charter requires that the right  first be recognized. Then s. 1 provides a clear mechanism to limit that right. 39 Pursuing a claim to a right to equality under human rights legislation requires agreement with the proposition that the denial of the alleged right amounts to discrimination within the meaning of the legislation. There are three different ways to limit the right depending on the particular wording of the legislation in question. ° First, 4 the legislation may provide a specific exemption for the circumstances in question.  38.  “Inclusion News”, Fall 1991, P. 1.  39.  See chapter 6.  40.  See chapter 5.  Equality and Non-Discrimination  56  Second, most human rights acts contain general limitations referred to as bona fide occupational requirements (or similar words) for employment or bona fidejustifications (or similar words) for services. Third, where a statute fails to provide a limitation mechanism the courts will read one in. 41 An equality claim may be defeated by some overriding right or interest if the two cannot co-exist together. Recognizing and acting on an equality right recognized by law or by social policy often costs money. In other words, it requires changing resource allocations. The necessity of choosing how to distribute scarce resources leads to the making of tragic 42 In the context of disability rights this means that some disabled people will choices. have their needs met and others will not or not sufficiently to alleviate all disadvantage. As with all distributional choices, the choices related to disability issues are constantly seeking a new equilibrium as demands are met, new ones are made, other social demands put pressure on the resources dedicated, and the overall economic situation affects total resource availability. Allocation decisions are reflected in decisions about the extent of accommodation which will be deemed reasonable and the categories of people or 43 categories of rights which will receive the protection of the law. The natural tension between regulated clients and program beneficiaries is played out as they both endeavour to affect the direction of and responsibilities mandated by implementation. Neither side is likely to stay satisfied for long with existing policies, and each new question whether about including a new group under non-  41. See, for example, OntthoHzinianRights Commission andO’MaJJey v. Simpsons-Sears[1 98512 S.C.R. 536, 7 C.H.R.R. D/3 102, in which Mr. Justice McIntyre “read in” the concept of reasonable accommodation subject to undue hardship to deal with an Ontario statute that contained an absolute prohibition of discrimination because of religion. 42. Guido Calabresi and Philip Bobbitt, Tragic Choices. The “tragic choice” is a choice which is made that implies a rejection of a proclaimed fundamental value of the society. The choice must be made because it deals with an essential requirement of society but it conflicts with basic values. Societies try to avoid making these choices by an allocation system which hides the essential tragedy. As the allocation system’s failings are socially acknowledged the response is to change the allocation system since the choice still has to be made. The primary examples used are the resource decisions about kidney machines and child bearing. 43. Percy, supra, fn. 32, at p. 253.  Equality and Non-Discrimination  57  discrimination protection or requiring a new form of accommodation resurrect struggles between opposing groups.  -  will  This is no permanent equilibrium among the various claims of right to equality. Although there may have been long periods ofsocial stability during which an equilibrium was maintained, we are currently in a period of rapid social change. Although it may be impossible to achieve total equality, public policy should be directed toward striving for equality by the progressive reduction ofeconomic stratification and individual and group disadvantage. In the next chapter I will review the development of current official policy respecting disability interests. Since there are gaps between policy and practice I will review a theoretical model which purports to explain why there are always difficulties in trying to implement any policy change and give a brief overview of one example.  44. Ibid p. 254.  Official Policy  58  1V. OFFICIAL POLICY TOWARD DISABLED PEOPLE:  Public policy related to disabled people has changed significantly during this century. Beginning in the 1960s, the policy of deinstitutionalizing mentally ill people spread quickly across the country. Mentally and physically disabled children began to be integrated into the public school system. By the rnid-1980s provincial and federal governments had adopted the integration model as the basis for their official policy towards disabled people. This policy shift occurred at different rates in the development of health, education, and human rights policies and in the various provinces but the shift has been consistent and increasingly is reflected in programs and services for disabled people. The federal government’s announcement in 1991 of a National Strategy for the Integration of Persons with Disabilities is the most recent manifestation of this fundamental shift in public policy towards disabled people.  A. Integration as Official Policy:  Since the late 1960’s Canada has been moving toward the integration model as the foundation for govermnent policy respecting disabled people. The process started with the deinstitutionalization of mentally ill patients. In the field of education the adoption of the integration model began a process of placing mentally and physically disabled children in regular classrooms with the help of auxiliary aids and programs. Over a ten year period human rights legislation was amended to prohibit discrimination because of mental and physical disability. To the economic and medical/technological pressures for integration was thus added the civil rights argument.  In 1980 a special House of  Commons Committee held hearings across the country and, in 1981, published its report, Obstacles. The Committee noted the disadvantaged position ofdisabled people in society and made many wide ranging recommendations for improvement. The Charter ofRights  Official Policy  59  andFrecdoms guaranteed equality without discrimination because of, inter aiia, disability. With the announcement by the federal government of a National Strategy for the lntegration of People with Disabilities, integration has been adopted as official government policy for the formulation of programs directed to disabled people. After almost twenty years of progress towards integration disabled people are still significantly disadvantaged by their segregation and isolation. After discussing some reasons why, despite change in public policy, progress towards integration and the reduction of disadvantage is so slow this chapter concludes with a brief review of disabled people’s political action initiatives.  i.  The Policy of Deinstitutionalization:  The decade of the 1970s was a time when large scale closing of mental institutions occurred in Canada and the United Sates. One of the initiating factors for this movement was the discovery and widespread use of tranquillizing drugs in the 1950s which allowed more patients to return to the community on medication. The deinstitutionalization movement began in the early 1960s in California and spread quickly in the two countries. Under pressures arising from U.S. legislation limiting the use of involuntary committal, budget cuts, and changing theories about optimum treatment approaches, the initial stage involved transferring patients from large scale state mental health institutions to nearby general hospitals.  Soon after, further deinstitutionalization occurred with the  development ofcommunity living approaches to therapy, half-way houses, and other after care facilities (after treatment for acute episodes in hospitals).’ As in the U.S., in Canada, the closing of large centralized institutions for mentally ill and developmentally delayed patients followed the change from custodial to therapeutic approaches to care and  1.  See generally P. Alimed and S. Plog, Introduction and an Overview of the Closing Scene, in Paul I. Ahmed and Stanley C. Plog (eds.), State Mental Hospitals: What Hanpens When They Close, p 1.  Official Policy  60  treatment, from therapies such as electro-shock and lobotomies to drugs and, later, behavioral modification. An example is the closing of the Saskatchewan Hospital in Weyburn in 1971, fifty years after its opening. Care and treatment of the residents was 2 Initially, the transferred to comprehensive small community mental health centres. process was not based on a concept of the rights of the patients or an ideology of integration into the community to promote and protect the human rights of patients. It was, rather, a combination of a reflection of society’s faith in mental health experts and the mental health professions’ rise in power and influence. They were developing theories 3. that this approach was a better treatment regime and wanted it to be implemented Additional pressure was exerted by community groups ofinterested people or present and past consumers of the services. As well, the widely touted savings ofcommunity care over the expense of maintaining the often outdated facilities added the support of the public 4 officials concerned with mounting expenses of government. The policy change to deinstitutionalization of mentally ill and developmentally delayed individuals was clearly and firmly entrenched by 1970-71 in Canada. At the same time the increase in the number of psychiatric units in general hospitals and the provision of family support programs so disabled children could receive their primary care from their families supported the movement to replace the large institutions. However, the implementation ofthe new policy was frequently inadequate. Closures happened without adequate notice to allow local authorities to plan alternate service delivery and lack of data to allow adequate planning and inter-departmental coordination contributed to cases of extreme hardship and failure to obtain care and treatment for many thousands of ex 2.  Milton Greenblatt, Histon’calFactors Affecting the Closing ofState Hospitals, in Ahmed and Flog, ibid,p. 11.  3.  David F. Musto, The Community Mental Health Centre Movement in Historical Perspective, in Walter B. Barton and Charlotte J. Sanborn (eds.) An Assessment of the Community Mental Health Movement, p. 9.  4.  Greenblatt, supra, fn. 2, p. 1 6. Paul R. Dingman, in TheAiternative CareIs Not There, in Ahmed and Plog, supra, fn. 1, p. 46, argues that cost was the primary reason the states began to close the large institutions.  Official Policy  61  5 There has been criticism of the policy of deinstitutionalization based on residents. factors ranging from the failure to prepare adequate alternative community support for the individuals to concerns that the theoretical underpinning of the therapeutic value of community living has not been proven. Despite this, deinstitutionalization has been adopted as the paradigm of choice and accepted politically without challenge. There remains very strong professional and grass roots support for the concept. In the last half dozen years there has been strong, ongoing pressure for the acceptance of this revised paradigm in which decentralized services are provided as part of an ideology of integration as a matter of human rights and also within the concept of a holistic, multi party (composed of professionals, self-help groups, community support groups, and politicians) community ownership of the problem. 6 And yet, even by 1987 the greatest share of public money spent on the needs of mentally ill and developmentally delayed individuals was taken by institutions, not community based alternative care facilities. 7 Deinstitutionalization has also fundamentally changed the special education services provided for disabled children (“exceptional children” in education jargon). While integration into the regular school system is the objective, many different strategies are being used, including “deinstitutionalization, integration, non-categorical approaches to teaching, and a rejection of traditional labelling.” 8 The objective of integrating disabled children into the regular school system (referred to as “mainstreaming”) is to provide children with learning, behavioural, developmental, and physical disabilities with the  5.  Agenda for Action: Committee on Mental Health Services in Ontario, pp. 153-59 and 305-3 10.  6.  Francoise Boudreau, The Making ofMentaiHeaJth Policy: The 1980s and the Challenge ofSanityin Quebec and Ontario, (1987) 1 Canadian Journal of Community Mental Health 27.  7.  Geoffrey Nelson, Special Issue: Community Mental Health Services for the Chronically Mentally Disabled, (1987) 6 Canadian Journal of Community Mental Health 5 at p. 5.  8.  Margret Winzer, Children with Exceptionalities: A Canadian Persoective, (2h1I Ed.), p. 83. See also Kofi Marfo & Wayne C. Nesbit, Egalitarian Versus Pedagogicai Concernsin Education: The Case of Integration in SpecialEducation, in Marg Csapo & Leonard Goguen (eds.), Special Education Across Canada: Issues and Concerns for the ‘90S, p. 179.  Official Policy  62  opportunity for “as normal an education as is consistent with their needs.” 9 These children must be integrated into the physical as well as the intellectual, social, and emotional milieu of the local school. Mainstreaming may prove to be a more restrictive environment if exceptional children are debased by their peers, socially isolated and poorly accepted. Socially, exceptional students in the regular schools must have the same access to the various school programs and activities as other students; they must be provided with equal opportunities for participation within the regular classroom. Effective mainstreaming requires a re-allocation of special education services to meet the widely varying needs of these children. Some will require substantial home or hospital based education while others may need only special support staff while in a regular classroom. Similarly, a particular child’s needs may change over time so that a “cascade” of services must be available to serve the needs of that child as he/she develops and progresses through life. “The ultimate goal is for students to move as far into the regular programs as possible, being integrated socially, emotionally, intellectually and physically.” Mainstreaming is not, however, universally accepted by parents of disabled children or education professionals as the most suitable educational approach. Some fear their child will not receive the personalized attention segregated special education classes can provide: others fear their child will be ridiculed and rejected by the other children in 2 a regular classroom.’  9.  Winzer, ibid. p. 84.  10. Ibid, p. 84. 11. Ibid,p.87. 12. Ibid. p. 90. See also Anne Jordan Wilson, Ontario’s Bill82 in Retrospect, in Csapo & Goguen, supra, fn. 8, at p. 91. For an example of serious criticism of the mainstreaming concept see Marfo & Nesbit, supra, fn. 8, at p. 181 where it is said: the movement towards regular class placement for all handicapped children is driven largely by human rights concerns.. These concerns have been expressed, and in some cases exploited, to promote regular class placements for all, often without regard for sound principles ofinstruction and learning. As one example, many deaf people are criticizing the mainstreaming of deaf children and the insistence that they learn to lip read. Presentations to the Illinois Advisory Committee to the U.S. .  .  Official Policy  63  Although the principle that all children have the right to equal educational opportunities applies to all provincial school systems, the means to this end vary among the provinces. In some (eg: Ontario, Manitoba, and B.C.) legislation, and in others (eg: Nova Scotia, Prince Edward Island, Saskatchewan) department of education policy requires that school boards provide education to all disabled children.’ 3 The requirement that school boards provide an appropriate education to all disabled children does not mean that such education must be provided in an integrated setting.’ 4 However, it does compel “schools to move toward mainstreaming and individualized education programs for the protection of each child with special needs.” 5 The degree to which mainstreaming is mandated varies among the provinces and among local school boards, depending to a great extent on the perception of the local authorities about the cost and available resources and differing attitudes towards the effectiveness of integrated education for disabled children. In addition to legislative changes requiring integrated education, in many instances parents have initiated litigation to force local school boards to allow their children to participate in the regular school system with appropriate supports. These cases typically use a combination of education and human rights law and Charter arguments.’ 6  Commission on Civil Rights (Rights of the Hearing Impaired) objected that this approach denied the deaf child’s civil rights to an effective education. Many deaf people argue that sign language is the native language ofdeaf people, that integration in a regular classroom is to deny the child’s “deafness”, and that only by coming together in special schools for the deaf can a deaf peer group form to prevent social isolation. Studies presented to the Committee showed that despite the provisions of the Rehabilitation Act, 1991 the number of special schools for the deaf had increased from 6 to 102! For others, however, the proliferation of special education specialists is a socio-economic phenomenon which merely perpetuates a system which relegates poor, disadvantaged, and minority group children to a permanently exploited under class. See David A. Leitch & S.S. Sodhi, The Remediation Hoax, in Csapo & Goguen, supra, fn. 8, at p. 267. 13. Winzer, supra, fn. 8, pp. 103-8. 14. Leonard Goguen, Evolving Educational RiEhts of Exceptional Children in Canada, in Csapo & Goguen, supra, fn. 8, at p. 159. 15. Marg Csapo, From Mm or Stream to Mamstream: A SociologicalPerspective, in Csapo & Goguen, supra, fn. 8, at p. 255. 16. Winzer, supra, fn. 8, p. 111.  Official Policy  64  The ideology of deinstitutionalization and integration was first implemented in practice for mentally ill people and developmentally delayed children in schools. The driving forces influencing governments to adopt this new approach were the claims about the cost-benefit to the public purse and the therapeutic benefits of integration. By the mid-1970s physically disabled adults were also contributing to and benefiting from this ideology. These adults began to form consumer groups as self-help organizations to support their efforts to take control of their lives. Soon after, these consumer groups began to argue successfully that integration was a basic principle of their human rights.  ii. Human Rights Legislation:  The 1973 British Columbia Human Rihts Code prohibited discrimination “without reasonable cause” in employment.’ 7 A Board of Inquiry held that physically handicapped individuals were protected under the Code because the mere fact of having a handicap could not be a reasonable cause to discriminate against a person in 8 This was the first time human rights legislation had protected disabled employment.’ people. In 1976 New Brunswick was the first province to add “physical disability” to its human rights legislation as a prohibited ground of discrimination.’ 9 In 1977 Manitoba added, and thejust passed Canadian Human RihtsActincluded, “physical handicap” as a prohibited ground of discrimination. 20 Other provinces followed with Ontario, the last province to do so, adding (mental and physical) “handicap” in 198 1.2k The report of the  17. S.B.C. 1973  fld 2 (  Sess.) c. 119.  18.  Jefferson v. B.C. Femes Services, (unreported, 1976).  19.  S.N.B. 1976  20.  S.M. 1977 c. 46; S.C. 1976-77 c. 33.  21.  Ontario Human Rights Code, 1981, S.O. 1981 c. 53.  C.  31.  Official Policy  65  House of Commons Special Committee on the Disabled and the Handicapped urged the extension of human rights legislation protection against discrimination by covering physical handicap in all sectors and by the addition ofmental disability in all sectors. The  Canadian Human Rights Act was amended in this fashion effective July 1983.23 The provinces which had not already included mental disability as a prohibited ground of discrimination rapidly followed suit just before and after section 15 of the Charter of  Rights and Freedoms came into force in April 1985.  iii. The Obstacles Report:  The Report ofthe House ofCommons Special Committee on the Disabled and the Handicapped (1981) proposed three principles upon which social policy related to disabled people should be based: • Participation: Disabled Canadians must have the same opportunity to participate fully in all of the educational, employment, consumer, recreational, community and domestic activities which characterize everyday Canadian society. • Responsibility: All Canadians are responsible for the necessary changes which will give disabled persons the same choice of participation that are enjoyed by those who are not disabled (sic). • Self-Help: Disabled Canadians are often best able to help themselves through their own service and advocacy organizations. 24 In the report the Committee makes recommendations designed to achieve the following objectives: • Achievement of adequate income • Support for promotion of self-help efforts. • Provision of technical aids, and community support services such as attendant care and intervenor services. • Equal benefits and protection under the law.  22.  Obstacles,  23. S.C. 1983  pp. 131. C.  143.  24. Supra, fn. 22, p. 4.  Official Policy  66  • Equal opportunity of access to public buildings, facilities and programs. • Equal access to a full range of opportunities in  • Employment • Housing • Education • Transportation • Recreation • Communications and Information • Provision of community support services to reduce or eliminate the need for institutional care. • Improved quality of life for disabled persons who live in institutions.  iv. Federal Government Employment Policy Initiatives:  The federal government made a policy decision in 1978 to initiate a program to increase the employment options of disabled people in the public service. The formal policy statement was approved in 1981! The policy permitted departments to purchase technical aides and directed departments to make extra efforts to hire disabled people and provide career development opportunities for then currently employed disabled people. All departments were required to submit annual reports on their progress to Treasury Board. Regional offices of the Public Service Commission established special units to provide individualized service to disabled people seeking employment and, in 1985, a special pooi of person years was established that departments could draw upon to hire disabled people for a period of training and integration to the work place. In addition, the federal government initiated a pilot program of affirmative action in five departments which included disabled people as one of the target groups. A separate pilot project for the hiring of mentally disabled people was established in 1982. Affirmative action including the disabled as a target group was made part of the application process for all federal employment programs in 1982 when the various job creation programs were  25. Ibid, p. 5. 26.  Surmounting Obstacles. Third Report, pp. 13-15.  Official Policy  67  combined into the Canada Jobs Strategy. These initiatives were designed by Treasury Board without the support or enthusiasm of line departments. Implementation was haphazard and depended on the interest of individual line managers and personnel officers. While no doubt a few disabled people obtained jobs of longer or shorter duration, these initiatives represented only the first uncertain response to the newly emerging disability rights movement.  v.  Inclusion of Disability in Section 15 of the Charter  Section 15 of the Proposed Resolution respecting the Constitution of Canada, presented to Parliament on October 6, 1980, entitled Non-discrimination Rig-hts, provided for “the right to equality before the law and to the equal protection of the law without discrimination because of race, national or ethnic origin, colour, religion, age or sex.” 27 The exclusion of disabled people was deliberate. 28 This exclusion was severely criticized across the country. Calls for inclusion of disability as an enumerated ground were heard in the numerous public forums which discussed the proposals, the media, and letters and petitions. At this time the Special Committee of the House of Commons on the Disabled and the Handicapped was holding its hearings across the country. The issue of the inclusion of disabled people in the Constitution was raised frequently. The Council of Canadians with Disabilities, the Canadian Association for the Mentally Retarded, and the Canadian National Institute for the Blind, supported by a wide range of other public interest groups, made the argument for inclusion of disability directly to the Special Joint  27. Anne F. Bayefsky, DefmingEqzialltyRightsin Anne F. Bayefsky and Mary Eberts (eds.) Equality Rights and the Canadian Charter of Rights and Freedoms, p. 1 at p. 10. 28.  M. David Lepofsky and Jerome E. Bickenback, EquthtyRibts and the Physically Handicapped, in Bayefsky and Eberts, ibid, p. 323 at p. 332.  Official Policy  68  Committee of the Senate and the House of Commons on the Constitution of There were a number of arguments presented to the Joint Committee in support of including “disability” as a specified ground.  The Obstacles report included the  recommendation based on the evidence it had collected in its cross country hearings that there were significant examples of discrimination against disabled people, whether intentional or not, by private and public agencies and in provincial and federal legislation. It was said that not to include disability would indicate that equality rights for disabled people were less important than for other groups. There were significant numbers of disabled people and so the addition would not just be for a few people. Canada had international obligations respecting the protection of the rights of disabled people to fulfil, and it was noted that 1981 was the United Nations’ International Year of the Disabled Person. ° The government’s resistance to inclusion of disability in the list of grounds was based on three considerations. First, the term was too vague and would pose serious problems ofjudicial defmition. The Minister ofJustice argued “these rights may not have ‘matured’ in the minds of the public, [and] there would be a problem in defining the population to be protected and the rights involved.” ’ Second, the question of cost was 3 raised. However, no evidence on this matter was presented. And, finally, the government argued that the statutory human rights scheme was a more appropriate forum to protect the rights of disabled people, again without presenting evidence to support this view. 32 In response, witnesses to the Committee noted that the defmition problem was no greater than for other terms which were included and, if desired, several defmitions which  29. Formerly known as the Coalition of Provincial Organizations of the Handicapped (COPOH). COPOH lead a march on Parliament Hill in 1980 to urge inclusion of”disability” as a specified ground under s. 15 of the Charter. 30. Lepofsky and Bickenback, supra, fn. 28, PP. 335-8.  31. Ibi4p.334. 32. Ibi4 pp. 338-9.  Official Policy  69  had proven their worth could be used. Respecting costs, it was opined that this was not a real objection and, in any event, in many cases, costs would be reduced when disabled people were integrated into the conmiunity.  In addition it was objected that to  circumscribe the rights of disabled people because of costs assumed that disabled people were the lowest priority of governments and subjected their rights to a cost/benefit analysis which applied to no other protected group. In response to the statutory human rights schemes argument, it was noted that much ofthe discrimination rose from legislation itself and that these schemes could be altered at will by the various legislatures. 33 On January 12, 1981, the government proposed a number of changes to the resolution. Section 15 was amended to add “and the right to the equal protection and equal benefit of the law without discrimination” and the list of grounds of prohibited discrimination was made open ended by the words “without discrimination, and in particular, without discrimination based on.  .  .“the same list of seven grounds. The  Minister of Justice made it clear the issue of disability was considered but not adopted by the government. The Minister noted that if discrimination was found to exist the open ended list would permit the courts to intervene. On January 16, 1981 the Minister was  asked by the Joint Committee if, considering 1981 was the International Year of the Disabled Person, the government would reconsider its refusal to add disability to the list of grounds. On January 28, 1981 the Minister of Justice agreed to the amendment 35 and the provision was included in the February 13, 1981 draft of the proposed resolution which was eventually enacted. 36  33.  Ibid. pp. 339-40.  34.  Ibid. p. 334.  35. Ibid, pp. 334-5. 36.  Bayefsky, szipra, fn. 27, P. 10.  Official Policy  70  vi. The Employment Equity Act  In 1983 the Royal Commission on Equality in Employment was established to review the employment position of women, aboriginal peoples, disabled people, and visible minorities. In her report Commissioner Judge Rosalie Abella proposed that “anew term, ‘employment equity’, be adopted to describe programs of positive remedy for discrimination in the Canadian workplace.” 37  This term was intended to avoid the  negative emotional context of the American term ‘affirmative action’. Judge Abella said: “No great principle is sacrificed in exchanging phrases of disputed defmition for newer ones that may be more accurate and less destructive of reasoned debate. 38 The federal Employment Equity Ac? came into force on August 13, 1986. Section 2 provides that: The purpose of this Act is to achieve equality in the work place so that no person shall be denied employment opportunities or benefits for reasons unrelated to ability and, in the fulfilment of that goal, to correct the conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and persons who are, because of their race or colour, in a visible minority in Canada by giving effect to the principle that employment equity means more than treating persons in the same way but also requires special measures and the accommodation of differences. The Act applies to federally regulated private and Crown Corporation employers employing 100 or more persons but not to any employer undertaking work of a local or private nature in the Yukon Territory or the Northwest Territories or the government. Designated groups are described in section 3 as “women, aboriginal peoples, persons with disabilities and persons who are, because of their race or colour, in a visible minority in Canada.” Section 4 requires an employer  37. The Report of the Commission on Equality in Employment, p. 7. 38. Ibid, p. 7. 39. S.C. 1986, c. 31. In 1993 Ontario passed legislation to implement employment equity for both government and private employers and British Columbia enacted the Pub]icServiceActwhich permits the implementation of employment equity in the public service.  Official Policy  71  in consultation with such persons as have been designated by the employees to act as their representatives or, where a bargaining agent represents the employees, in consultation with the bargaining agent to implement employment equity, by identifying and eliminating barriers to employment, and instituting “positive policies and practices” to ensure that persons in the designated groups will achieve a representation proportional to their representation in the labour force. The regulations defme “consultation” to mean “that the employer must supply sufficient information and sufficient opportunity to employee representatives or bargaining agents to enable them to ask questions and submit advice on the implementation of Employment Equity”. Employers are required to prepare an annual “action” plan, including goals and timetables. Starting in June 1988, and annually thereafter, employers are required to submit to the Canada Employment and Immigration Commission (CEIC), which will forward a copy to the Canadian Human Rights Commission (CHRC), reports about hiring, promotions, and terminations according to industrial sector, geographic location, and employment status by occupational group and salary range for designated and non-designated group employees. Failure to do so is a  summary conviction offence and may result in a fine not exceeding $50,000. Copies of these reports are also made available to the public through selected public libraries. In practice, consultations with unions have been neither frequent nor effective. There is fault on the side of the unions for not demanding their right to be consulted and on the side of employers for neglecting to consult. There are no penalties for failure to fulfil the requirements of the Employment Equity Act, except for failure to prepare and forward a workforce census. Initially the  government believed that negative publicity arising from reports which showed underrepresentation would be sufficient incentive for employers to voluntarily take corrective action. This provoked vigorous criticism. The CHRC declared its willingness to take on the role of an enforcement agency by using its authority to initiate complaints based on the data collected through the workforce censuses. The government amended the bill to  Official Policy  72  provide for the transfer of census reports to the Commission. Each year the CHRC reviews all the reports and, based on rather imprecise selection criteria, invites a number ofemployers to enter into a “voluntary review” of their employment systems. In co-operation with the employer, the Commission reviews the workforce data, employment systems analysis, and employment equity plan.  An  agreement to end the joint review is achieved when the Commission is satisfied that the plan will be effective to correct underrepresentation in the workforce. Individuals may also file complaints based on the data. In such cases an investigation is conducted by the Commission. The process of investigation is essentially the same as that of a voluntary 40 review. Although the federal government is not subject to the Employment EqultyAct, it has directed departments to produce statistical reports and prepare plans as required by the Act. ’ The policy does not require consultation with public service unions. 4  vii. The Federal Contractors Program:  The Federal Contractors Program was established in October 1986 by Cabinet order. Companies employing 100 or more employees and bidding on contracts worth $200,000 or more must, as part of the bidding process, commit themselves to implement employment equity if they are successful. Failure to comply with employment equity measures can lead to loss of the opportunity to compete for future contracts. Companies  40.  OperationaiProc.eduresforEnsunng Compliance with Employment Equity, Canadian Human Rights Commission. By November, 1993, 10 reviews under the Act, 11 reviews of government departments, 30 complaints under the Act, and 28 complaints against government departments have been undertaken (representing 65.5% of all employees covered by the legislation). Since the government is not covered by the Act, these reviews and complaints are based on the Commission’s general power to investigate complaints of systemicdiscrimination. Eleven reviews andthirteen complaints have been completed.  41. Employment Equity Policy, Personnel Management Manual, V. 4 c. 15, May 1988. Amendments to the PublicServiceEmploymentAct(S.C. 1992, c. 54, s. 5) provided specific statutory authority for this policy.  Official Policy  73  bidding on contracts must certify their commitment to employment equity implementation when they submit the bid. Upon award ofthe contract, the company must implement the same type of employment equity plan as required by the Employment Equity Act and authorize CEIC officers to review the implementation of the program. CEIC officials based in Ottawa will assess compliance and measure performance levels. If the review results are negative the contractor has 12 months to correct the identified deficiencies. Companies dissatisfied with the CEIC audit may appeal to the Minister of Employment and Immigration. Failure to comply with CEIC directions to rectify deficiencies may lead to sanctions, including eventual exclusion from bidding on future contracts. Despite the close relationship to the other requirements ofthe Employment Eqwty Act, the contractors program does not require consultation with the companies’ unions.  viii. National Strategy for the Integration of Persons with Disabilities:  Throughout the 1970s and 1980s many private and public entities had been responding to the equality expectations of disabled people by adjusting policies, developing technologies, or opening educational, employment, and recreational opportunities. The process of implementing the recommendations of the 1981 Obstacles report progressed slowly throughout the 1980s. But there was no concept of a national policy to coordinate the activities of the various levels of government and the private sector to maximize the rate of change. Even without any coordinated plan, progress was being made on many fronts. Transport Canada has been actively working on problems related to access to various modes of transportation, access to and from airports and access within airports, and has been funding and coordinating research on bus loading devices, model accessibility projects, and the development of public communications systems to allow disabled  Official Policy  74  travellers the same service system as non-disabled people. 42 Technological advances in telephone communication devices are continually being made and telephone companies generally allow discounts for, or free use of the equipment by, disabled people. Relay services for deaf consumers exist in most companies, although the restrictions and limitations ofthe service do not allow equal access to the service available to non-disabled consumers. However, equipment for deaf and hard of hearing, vision impaired, and movement impaired consumers is available and being improved.  BC Transit, the  Vancouver public transit system composed of bus, skytrain, and seabus services, is significantly integrated and working to complete the process. It also runs a special service for those unable to use the existing system or living too far from an accessible service. But, in contrast, the number of accessible subway stations in Toronto remained at zero between 1981 and 1991 and the number of accessible inter-city buses in Ontario remained at zero in the same time frame. 43 Maclean Hunter Cable TV began a Closed Caption Decoder Program in May 1991 in all its Ontario systems, and Rogers Cablesystem in Ottawa did the same with plans to expand the services of all its customers in British Columbia, Ontario, and Alberta by the spring of 1992 (about 95% ofprime time U.S. and Canadian television is captioned), but Metro Toronto taxi services have not taken advantage of provincial funding to ensure an accessible taxi service. 44 In 1989 the Manitoba government issued a policy on accessibility to public meetings and hearings, government services, publications. 45 On September 6, 1991, in Winnipeg, the Prime Minister announced the federal government’s “National Strategy for the Integration of Persons with Disabilities”. 46 The 42.  “Mobility Plus: A transportation newsletter for the disabled community”, Transport Canada, V. I 1988.  43. Arch-Type, V. 9 # 3 April-May 1991, p. 18. 44. Ibid, p. 25-6. 45.  “Manitoba’s Guidelines on Access to Government”.  46. Press Release, P.M.O., Ottawa, September 6, 1991.  Official Policy  75  Prime Minister said “Persons with disabilities neither ask for special sympathy nor expect special privilege; all they ask for is equal access.” This National Strategy is based on three goals: “equal access, economic integration, and effective participation [to] bring people with disabilities into the social and economic mainstream of Canadian life.” The Department ofthe Secretary of State has a lead role to coordinate the work often federal government departments: The Department ofthe Secretary of State, Canadian Mortgage and Housing Corporation, Department of Communications and National Library of Canada, Employment and Immigration Canada, Health and Welfare Canada, Fitness and Amateur Sport, Indian and Northern Affairs Canada, Department of Justice, Labour Canada, Transport Canada, National Transportation Agency, and Treasury Board 47 The Strategy encompasses issues related to access to employment, training, Secretariat. housing, communications, transportation, public sensitivity, and community integration. “The government strategy recognizes that barriers to the full participation ofpersons with disabilities are complex and interrelated”. 48 A flurry of activity to introduce this program followed the Prime Minister’s announcement. Fitness and Amateur Sport announced a program, “Active Living for Canadians with a Disability: A Blueprint for Action”, “to facilitate the inclusion of students with disabilities in appropriate physical educationlactivity opportunities” Department  of Communications  Communications  established  the  for Persons with Disabilities”  “Advisory to  .‘  Committee  The on  advise the Minister on  “communications related actions needed to facilitate the integration of persons with disabilities.  47.  Labour Canada established the “Workers with Disabilities Fund”  Many of the names of these departments changed as a result of a government reorganization near the end of 1993.  48. The National Strategy for the Integration of Persons with Disabilities, Ottawa, 1991, 49. Press Release, Minister of State for Youth, Fitness and Amateur Sport, November 8, 1991, Ottawa. 50.  Press Release, Communications Canada, November 7, 1991, Ottawa.  Official Policy which includes “consultations  76 .  .  .  to identify possible barriers in the legislation and  regulations [of the Canada Labour Code], and improve access to employment for people with disabilities.” ’ During the same time span, the other departments also announced 5 department specific program initiatives directed toward the integration of disabled people.  B. The Slowness of Change:  i. Is the Change Slow?  The House of Commons Committee on the Disabled and the Handicapped stated in its 1981 report: In comparison with the efforts being made in other countries, Canada shows poor progress in assisting disabled persons in the areas of employment opportunities, income security, community support services, and technical aids. The Members can find little reason for this situation other than lack of direction and coordination on the part of government, institutional, and community leaders who have the power to make changes. There are no insurmountable obstacles to prevent Canada from taking a world leadership role in providing disabled persons with the practical means for greater independence. 52 The Canadian Human Rights Commission has undertaken a number of surveys to determine the effectiveness of current access law and policy. The first survey dealt with physical access to federal government departments. 53 The survey was based on compliance with the Canadian Standards Association CSA B56 1 “Barrier-Free Design Standard”. With a score of 100 representing full compliance with the Standard the offices ranged from a low of 24.62 (for the hard of hearing in the Health and Welfare office in Halifax) to a high of 92.06 (for the blind in the Health and Welfare  51.  Press Release, Labour Canada, November 5, 1991, Ottawa.  52.  Obstacles, supra, fn. 22, p. 6.  53.  Canadian Human Rights Commission, Unequal Access: An Accessibility Survey of Selected Federal Offices. The Survey covered the Employment and Immigration Commission, the Canadian Human Rights Commission, Health and Welfare Canada, Revenue Canada Taxation, and the Public Service Commission in Halifax, Montreal, Ottawa, Toronto, Winnipeg, Edmonton, and Vancouver. -  Official Policy  77  office in Vancouver). The average rating for all disabilities and all offices was 62.94. The CEIC average of all disabilities by office was: Halifax -63.96, Montreal 54.71, Ottawa -  -  67.78, Toronto 50.36, Winnipeg 68.54, Edmonton 76.13, Vancouver 71.l2. The -  -  -  -  CHRC average of all disabilities by offices was: Halifax 54.95, Montreal 49.52, Ottawa -  -  -  63.72, Toronto 60.98, Winnipeg 48.81, Edmonton 63.72, Vancouver 60.98. The -  -  -  -  HWC average of all disabilities by office was: Halifax -50.12, Montreal 68.08, Ottawa -  75.66, Toronto  -  62.29, Winnipeg  -  61.24, Vancouver 77.80. The PSC average of all  -  -  disabilities by offices was: Montreal 68.79, Ottawa 56.50, Toronto 66.65, Winnipeg -  -  -  -  69.09, Edmonton 70.03, Vancouver 53.22. The Revenue Canada Taxation average -  -  of all disabilities by offices was: Halifax  -  -  55.97, Montreal  -  69.81, Ottawa  -  55.41,  Toronto 64.80, Edmonton 70.51, Vancouver 62.83. -  -  -  The Obstacles Report recommended a 1983 deadline for federal government buildings to be fully accessible. The government’s response was that new buildings would meet barrier free access standards and that standards were being developed for existing buildings. Treasury Board has had a policy of requiring access to its services since 1982 and there have been barrier-free design standards on accessibility within government since 1985. Compliance with accessibility standards varied with type of disability: (average of all facilities) Mobility impaired non-wheelchair users 67, mobility impaired wheelchair -  -  66, low vision 63, blind 59, deaf- 53, and hard of hearing 48. -  -  -  The second report of the “Unequal Access” series dealt with the availability of government publications in alternative format. 55 For the 552,585 adult Canadians who are visually impaired lack of access to the information available to other Canadians in print format is a serious barrier to their full participation in society. Alternate formats refer to information in large print, audio cassettes, braille and alternative output devices  54. Since 1981 the federal government has had “a mandatory provision” that all CEIC leased premises by accessible to all disabled people. A needs study was completed in 1982. (supra, fn. 26, p. 29). 55. Canadian Human Rights Commission, Unequal Access: Availability of Federal Government Publications in Alternate Fonnat.  Official Policy  78  (computers). The survey covered 48 departments and agencies. It may be noted that the 1981 Obstacles report recommended that a national communications policy be developed to ensure equal access to information and that in the 1983 government response 56 it was reported that Treasury Board had directed all federal departments and agencies to set aside up to 1% of their total publicity budget to produce and distribute materials in alternate formats. Current Treasury Board policy requires departments to make materials available in alternate formats within the same general time frames as for printed materials. Nearly 60% ofthe departments surveyed had no publications in alternate formats. These included CMHC, CBC, Consumer and Corporate Affairs, Elections Canada, Fitness and Amateur Sport, Information Canada, Justice, Occupational Health and Safety, Revenue Canada  -  Customs, the Status of Women, and the Transportation Safety Board. The  CHRC, CEIC, Health and Welfare, labour, NTA, PSC, and revenue Canada Taxation -  had some materials available. 80% of the departments had no alternate format policy (including at the time the CHRC), 40% had no alternate format publication plan, and 45% had no alternate format marketing plan. The lack of a marketing plan means that what little information is available is not known by the consumers to be available and so they do not ask for it. This low level of demand reduces the interest in the departments in producing the materials. This endless cycle has to be broken by the departments which have the responsibility to service the public. 57 The third report of the series “Unequal Access” dealt with the availability of  56. Supra, fn. 26. 57. See, for example, Manitoba’s Guidelines on Access to Government: PubiicationsPublicMeetings and Hearings Services, 1989. Information is to be provided in alternate formats but preparation depends on expected demand. Information thought to be of interest to disabled persons should be prepared in alternate format at time of general production. Other information may be made accessible in amount and format by agreement with the person requesting the information. Once material has been produced in alternate format a copy “should” by filed with the Legislative Library for use by others. Costs are to be the same as those charged all others. Public meetings sponsored by the government “are made reasonably accessible” to the disabled. Sites “should” be wheelchair accessible; specific arrangements for the deaf and hearing impaired may be provided upon request only. Government services, such as family dispute counselling, medical, training courses, are to be provided to deaf and hearing impaired citizens.  Official Policy  79  Telephone Devices for the Deaf (TDD) by Federal government departments. 58  In  August 1986 the Secretary of the Treasury Board wrote to all Deputy heads of departments and agencies to “ask them to ensure that:  ...  the hearing impaired are  afforded full telecommunications access at each major source of public information now available to the non-disabled.” 59 In June 1987 the Telecommunications Group of the Department of Communications asked for public input on how to improve access to telephone received advice and information for deaf and hard of hearing people. A random check oflisted federal TDD numbers by the Canadian Coordinating Council on Deafness in 1988 found 85% of TDD calls could not be completed. The CHRC study involved 55 offices representing 31 federal departments and agencies. 31% responded on the first call, 34.5% never responded, and only 43.6% responded within three calls. Canadian Human Rights Commission regional offices required from 1 to 6 calls before responding. CRTC, CEIC, labour Canada, and the RCMP all replied on the first call. Agriculture Canada, CSIS, Department of Justice, National Defence, Transport, and Veterans Affairs never responded. Some regional offices never answered and others answered after 1 or 2 calls in Health and Welfare, the PSC, Revenue, and Statistics Canada. Of the nineteen TDDs that were not answered the departments provided the following explanations: 6 because the telephone book listing was incorrect, 5 because the TDDs were being repaired, 5 thought their machines were working and said they would check, and 3 departments insisted their machines worked and would be answered despite the survey not getting through after 6 tries. The fourth report of the series “Unequal Access” dealt with banks . A snap shot 60 sample of7 branches (one in Halifax, Montreal, Ottawa, Toronto, Winnipeg, Edmonton,  58.  Canadian Human Rights Commission, Unequal Access Survey Report 3: Availability of TDD Services by Federal Departments.  59. Ibid,p.3. 60. Canadian Human Rights Commission, Unequal Access: An Accessibility Survey of Selected Banks.  Official Policy  80  and Vancouver) of six major Canadian banks was done. The average accessibility index for all disabilities was Bank of Montreal 74.76; CIBC 76.93; National Bank 71.79; -  Royal Bank  -  80.44; Scotiabank  -  -  -  74.89; Toronto Dominion  75.15. The results by  -  disability ranged from a low of 12.09 for access by wheelchair users in an Ottawa Bank of Montreal to 96.05 for access by deaf people in a Vancouver Bank of Montreal. The average access index by disability for all the banks was deaf 80.25; hard of hearing -  75.83; blind  -  72.65; low vision  -  76.15; mobility wheelchair  -  -  73.17; mobility non-  wheelchair 75.89. Banking services were delivered in various types of structure. The -  average accessibility index of all banks by all disabilities in these structures was; Main branch  -  72.80; major shopping centre  -  77.44%; strip shopping centre  -  77.59; free  standing suburban 75.28%; older freehold 74.04. -  -  The fifth report of the series “Unequal Access” dealt with Canada Post outlets . 61 The Commission used the Canadian Standards Association standard for these surveys. Many ofthe postal outlets met the provincial building code requirements but not the CSA standard. The survey of 2 outlets in seven cities gives a snap shot view: it is not suitable for statistical extrapolation. It covered the public access areas only. A rating of 100% denotes full compliance with the CSA standard. The average result for all disabilities for all offices was 78.35%. The average by city was: Halifax 79.09; Montreal 70.62; Ottawa -  -  -  88.47; Toronto 74.81; Winnipeg 78.69; Edmonton 68.45; Vancouver 88.33. The -  -  -  -  results by disability ranged from a low of 50 for deaf people in Montreal and Edmonton retail outlets to 100% for blind people in the Vancouver retail outlet. The average by disability for all outlets was deaf- 70.71; hard of hearing -78.00; blind -81.38; low vision  -  79.32; mobility wheelchair -79.84; mobility non-wheelchair 80.85. Canada Post services -  are offered through three types of outlet: corporate facilities operated by Canada Post, -  franchise operated as small businesses, and retail outlets operated on a commission basis. -  61.  Canadian Human Rights Commission, Unequal Access: An Accessibility Survey of Canada Post Outlets.  Official Policy  81  The overall accessibility rating by outlet type was: corporate 78.77; franchise 81.55; -  -  retail 74.52. Despite almost ten years of government policy, government services still do not meet national accessibility standards. Banks, subject to the accessibility provisions ofthe Canadian Human Rights Act since 1983, were generally on par with government  departments. Anyone who observes their daily activities with a view to accessibility concerns will see that human rights legislation and govermnent policy have not created an integrated or accessible society.  ii. Why is Change So Slow?  Ten years elapsed from the date of the Obstacles report before a national policy was articulated by the federal government.  Why has progress been so slow?  Implementation of the integration model is a major change in the way society interacts with disabled people. This is inevitably a slow process. A multi-disciplinary and multi-policy approach is required.  The stick of human rights complaints, Charter  challenges, withholding of funding, etc. needs to be combined with the carrot of tax benefits, public funding, and the p