ACCESSIBILITY RIGHTS FORDISABLED PEOPLEbyDAVID LEIGH HOSKINGB.A. Adv., University of Saskatchewan, 1972LL.B., University of Saskatchewan, 1976A THESIS SUBMITTED IN PARTIAL FULFILLMENT OFTHE REQUIREMENTS FOR THE DEGREE OFMASTER OF LAWSinTHE FACULTY OF GRADUATE STUDIES(FACULTY OF LAW)We accept this thesis as conformingto the required standardTHE UMVERSITY OF BRITISH COLUMBIAJune 1994© David Leigh Hosking, 1994In presenting this thesis in partial fulfilment of the requirements for an advanceddegree at the University of British Columbia,I agree that the Library shall make itfreely available for reference and study. I further agree that permission for extensivecopying of this thesis for scholarly purposes may be granted by the head of mydepartment or by his or her representatives. It is understood that copying orpublication of this thesis for financial gain shall not be allowed thout my writtenpermission.(Signature)_________________________________Department of___________________The University of British ColumbiaVancouver, CanadaDate_____> ///DE-6 (2/88)11THESIS ABSTRACTThe term “accessibility rights” refers to the right of disabled people to benefit fromthe provision of goods and services generally available to the public withoutdiscrimination because of physical disability caused by providing the services from alocation 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 andplaced disability rights on the political agenda. Current official policy is to integratedisabled people into all aspects of society. A major barrier to this policy is the failure toeffectively implement accessibility rights. This thesis examines the nature of accessibilityrights and their legal protection and offers proposals for improving the implementationof these rights.The major sources of legal protection for the rights of disabled people are humanrights statutes and the Charter ofRights. For this reason these laws are considered indetail to determine how effectively they protect accessibility rights.This thesis concludes that the current protections are inadequate andfundamentally incapable of guaranteeing accessibility rights. Three proposals forimprovements are made. First, legislatures should set out detailed policy directions forthe implementation of these rights. Second, the agencies which impact on theimplementation of accessibility rights should be required to coordinate their activities toensure that the work of each agency complements that of the others. Third, three newimplementation strategies should be adopted.First, self-regulating professions should adopt into their professional standards aduty to implement the principles of barrier free design into every aspect of theirprofessional activities. Second, existing regulatory agencies should have theirresponsibilities and powers augmented so they assume a greater role in the enforcement111of accessibility rights. Third, human rights legislation should be amended to add aregulatory enforcement strategy to the existing complaints based strategy. This additionalstrategy should be based on the concept of adaptation planning. This concept wouldallow for the orderly and cost-effective transformation ofthe physical structure ofsocietyso that disabled people no longer experience discrimination in the provision of services dueto physical barriers.TABLE OF CONTENTSivAbstractTable of Contents ivList of Tables viiiI. INTRODUCTION 1IV. OFFICIAL POLICY TOWARD DISABLED PEOPLEA. Integration as Official PolicyII. THE SOCIAL CONSTRUCT OF DISABILITYA. Who are the Disabled?i. Defmitionsii. Disability as Social Constructiii. Group Identityiv. Some StatisticsB. The Social Standing of Disabled Peoplei. Deviance and Segregationii. Barriersiii. Consequences10101015172026262933III. EQUALITY AND NON-DISCRIMINATIONA. The Elastic Concept of Equalityi. Equality at Common Law (Formal Equality)ii. The Failure of Formal Equalityiii. Substantive Equalityiv. A Role for Both Formal and Substantive EqualityB. Approaches to Equality for Disabled Peoplei. Separate but Equalii. Separate and Specialiii. Comparable Standardsiv. Full IntegrationC. Limitations to Equality Claims3839414243464851515253555858Vi. The Policy of Deinstitutionalization.ii. Human Rights Legislationiii. The Obstacles Reportiv. Federal Government Employment Policy Initiativesv. Inclusion of Disability in Section 15 of the Chartervi. The Emplojment Equity Actvii. The Federal Contractors Programviii. National Strategy for the Integration of PersonsDisabilitiesB. The Slowness of Changei. Is the Change Slowii. Why is Change So SlowC. Political Advocacy59646566677072with7376768192V. HUMAN RIGHTS LEGISLATIONA. General Principles of InterpretationB. Defmition of Discriminationi. Judicial Defmitionsii. Statutory DefmitionsC. Definition of DisabilityD. Definition of Goods, Services, and Facilities Provided to the PublicE. Limitations on Protection Providedi. General Legislative Limitationsii. General Implied Limitationsa. Bona Fide Occupational Requirementsb. Bona fide Justificationc. Reasonable Accommodation Short of Undue Hardshipiii. Specific Legislative LimitationsG. Remedies Under Human Rights Legislationi. Statutory Powers of Remedyii. Dealing with Discriminatory LegislationH. Criticism of the Enforcement ModelI. ConclusionsVI. THE CHARTER OF RIGHTS AND FREEDOMSA. General Principles of InterpretationB. What is Government?C. Equality Rights under 5. 15(1): General Principlesi. Equality Without Discriminationii. What is “Law” for the Purposes of Section 15?9798102102107111114120120123124139143149151151158166172176179184191194200viD. Interpreting Section1.203i. Section 1 - The Meaning of “Prescribed by Law” 205ii. Section 1- Demonstrably Justified 207E. Remedies under the Charter 218i. Severance and Reading In 222ii. Constitutional Exemption 228F. Enforcing Rights: Choosing the Judicial or Human Rights System ... 231i. When Is A Choice Available? 231ii. Making The Choice 235G. Conclusions 238VII. U.S. LEGISLATION RESPECTING DISABILITY RIGHTS 242A. Implementation by Contract 248B. Implementation by Financial Control 250i. The Rehabilitation Act, 1973 251ii. The Individuals with Disabilities Education Act (IDEA) 255C. Prescriptive Statutes 258i. The Rehabilitation Act 258a. Section 501 258b. Section 502 262ii. The Americans with Disabilities Act, 1990 264a. Title I: Employment 266b. Title II: Public Accommodation and Services Operatedby Public Entities 267c. Title III: Public Accommodation and Services Operatedby Private Entities 272d. Title IV - Conimunications 277D. Comments on the Effectiveness of Federal Law 278E. Conclusions 281VIII. PROPOSALS FOR IMPROVED IMPLEMENTATION OFACCESSIBILITY RIGHTS 284A. The Need for Clear Policy Direction 290i. Operating Principles 292ii. Services Provided by Private Entities 294B. The Need for Agency Coordination 300C. New Implementation Strategies 306i. Self-Regulating Professions 307ii. Alternate Enforcement Agencies 310iii. A Regulatory Human Rights Enforcement Model 316a. Adaptation Planning.b. Advantages and Disadvantages of AdaptationPlanningc. Operating Principles for Adaptation Plansd. Adaptation Planning for Governmentse. A Role for ComplaintsD. ConclusionsvuBibliography 338318320324330334335vu’List of TablesTable 1: Total Population and Disabled Population by Age Group 23Table 2: Disabled Population by Age and Residence 23Table 3: Percentage of Total Disabled Population by Age Group and Severity 24Table 4: Type of Physical Disability by Age 24Table 5: Number of People Using of Assistive Devices by Age Group 25Table 6: Disabled Persons by Degree of Dependence Performing EverydayActivities (age 15 and over, in thousands) 26Table 7: Number of People Having Expenses Related to Disability NotReimbursed by any Insurance or Govermnent Program 34Table 8: Amount of Expenditure Related to Disability, age 15 and over 35Table 9: Disabled Persons by Degree of Disability and Labour ForceStatus, age 15 - 64, in thousands 35Table 10: Disabled Employees by Major Occupational Grouping 36Table 11: Summary of “Serious Impediments” to ImplementingDisability Rights Mandates Ranked by State and AdvocacyGroup Officials 279Introduction 1I. INTRODUCTION:Canadian human rights legislation and the Charter ofRihts and Freedoms’guarantee physically disabled people the right to be free from discrimination inemployment, residential accommodation, and the provision of goods, services, facilities,and accommodations available to the public. Discrimination against disabled peopletakes many forms. An employer discriminates against aman who usesawheelchair whenit refuses to hire him because the employer believes that the appearance of a mandependent on a wheelchair will reflect poorly on its business image.2 A landlorddiscriminates against a prospective tenant whose sole source of income is a disabilitypension when he refuses to rent to anyone who does not have employment income.3 Ahospital which refuses to allow a seeing eye dog on the premises discriminates against ablind person who uses that assistive aid even if the hospital allows the person on thepremises without the dog.4 A social club discriminates against a member who uses awheelchair when it refuses to allow that person to take part in a social dance.5 Aninterprovincial bus company discriminates against disabled people when it fails to providebuses which are designed to board and transport people who use wheelchairs.6In this thesis I examine in detail one manifestation of discrimination againstphysically disabled people -- physical barriers to the equal use ofand benefit from servicesprovided to the public. The right to physical access is a somewhat awkward and1. 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 BurnabyBranch, No. 83(1989)10 C.H.R.R. D/5846.6. Ralston v. GreyhoundLines ofCanada, Canadian Human Rights Commission decision, April, 1994.In this conciliated settlement Greyhound agreed to provide ten buses which are designed to board andtransport people who use wheelchairs. These buses will be used on a number of interprovinciai runsand passengers will need to reserve one day in advance of the trip.Introduction 2ambiguous term. The word “accessibility” has a number ofmeanings but I think that, inthe context of discussions about discrimination and services, the phrase “accessibilityrights” is sufficiently clear to describe the general concept that physically disabled peopleshould not be prevented from using, and obtaining an equal benefit from, services solelybecause 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, andaccommodations generally available to the public without discrimination because ofphysical disability caused by providing the services from a location, or in a manner, whichpeople 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 requiresotherwise.A physical barrier which prevents a person from using or benefiting from a servicemay be a set of steps into the building from which the service is delivered, lack of visualinformation displays so deaf people can understand public address systemannouncements, the failure to provide written information in alternate formats so blindpeople can use the information in the same way as sighted literate people, or the use ofinaccessible 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 thephysical capacities of these people.Because accessibility is a combination ofthe environment and the person it is oftendifficult for people to recognize a barrier that they do not experience. It also means thatpeople working to improve accessibility rights frequently succeed only in “getting it almostright”. For example, there is a ramp leading from the UBC Faculty Club parking lot tothe building. A visitor is enticed up the ramp to fmd a six inch curb at the top! Or, mostcorners in downtown Vancouver have curb cuts. However, to cross on a green light oneIntroduction 3frequently has to go down a curb cut into the moving traffic lane to get to the cross walkbecause there is only one curb cut to go in both directions. A wheelchair requires a spaceabout four feet square which means that half the traffic lane is required to use the curbcut. 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 beingdeveloped because of the difficultly ofplanning for accessibility rights. Implementationof accessibility rights requires both appropriate technical knowledge and enforcementschemes.Accessibility rights, despite the Charterand human rights legislation, are still morehonoured in the breach- accessibility is still the exception not the rule. This claim issupported by the results of studies on accessibility conducted by the Canadian HumanRights Commission. Although these studies were limited in their scope they illustratewhat can be observed by a person going about his/her daily business and noting every timea step is encountered, an elevator is found without braille or raised numbers, or importantinformation is given over a public address system. The fact that there is no comprehensivedata base to measure improvements in accessibility since human rights legislation cameinto effect is itself perhaps a measure of how much accessibility rights are on the currentagenda of governments and private business. The current processes for enforcingaccessibility rightshaveproven themselves ineffective despite the remarkable progress thathas been made in the last several years. The disabled consumer advocacy groups havechosen to use the legislation to support their efforts in political arenas to press for actionon accessibility. That this is so says something about how effective the legal enforcementprocesses are believed to be. In Canadian Paraplegic Association v. Canada (ElectionsCanada)(No. 2) a number of complainants alleged that their accessibility rights hadbeen infringed when Elections Canada failed to ensure that their polling stations for the7. (1992) 16 C.H.R.R. D/341.lntroduction 41984 federal election were accessible. While this case was moving through the humanrights enforcement process the CPA was also applying pressure on the government toamend the Elections Act to guarantee accessible polling stations. By the time a decisionwas handed down in the case a Royal Commission had completed its work, anotherelection had gone by, and the Elections Act had been amended. Furthermore, thecomplaints of four of the individuals involved in the case were dismissed even though thepolling stations those people were assigned to were not accessible. Although the Charteralso guarantees equality rights for disabled people, nine years after the equality section ofthe Charter came into force there have been no cases directly on the issue of accessibilityrights. The purpose of this thesis is to propose some ways to improve the implementationof accessibility rights.This thesis begins with a discussion of the relationship between disability andsociety. In order to understand the life circumstances of a disabled person it is necessarynot only to understand the physical condition itself but also society’s response todisability. It is the interaction of the physical condition and the individual’s and society’sresponse to that condition that defmes and constrains the life circumstances of disabledpeople. Disability is a social construct as much as a physical condition. The functionaleffects of disability, even one with the same medical description, can very widely. Inchapter II, I briefly review the social construct of disability, some of the statisticalindicators ofthe variety offunctional limitations experienced by disabled people, and thesocial consequences of the barriers experienced by disabled people. In planning foraccessibility rights it is vitally important to remember that disabled people are as variableas any other group and this variation must be considered when taking action to augmentaccessibility rights.The law says disabled people have the right to equality and freedom fromdiscrimination. In chapter III, I review the nature of equality and discuss how theconcept’s elastic properties permit a wide range of interpretations. I will show theIntroduction 5weaknesses in the traditional concept of formal equality and argue that the notion ofsubstantive equality is a more appropriate framework for implementing the concept ofequality in Canadian society. However, even that concept does not automaticallydetermine the most appropriate public policies to advance the interests ofdisabled people.Disabled people are not a homogenous group. Different people have different ideas ofhow to implement equality and the implementation of accessibility rights is similarlysubject to debate on how it should be done. I briefly discuss four approaches to equalityfor disabled people, placing the most emphasise on the full integration approach whichhas become the foundation for current official policy and which, in my opinion, is themost suitable policy choice. I end this chapter with a discussion of the limitations toequality claims. These limitations are reflected in human rights legislation and the Charterwhich 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, andwhether full integration answers the equality needs of disabled people are all questionsupon which society has not yet reached any consensus. I briefly review the developmentof this ideology in the fields of mental health and education and then show how it haspermeated into other institutions. Implementation of the new policy has been extremelyslow. I briefly explore the theoretical reasons for this glacial pace ofchange. This subjectis not only of interest to students of politics. In devising proposals for change to thecurrent system of implementing accessibility rights I have taken into account theimpediments 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 politicaladvocacy. Disadvantaged groups have always had to lead their own struggles forequality. While the rest of society can help or hinder, it will not do anything for disabledpeople unless disabled people place themselves on the political agenda and vigorouslyIntroduction 6lobby 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 detailwith the emphasis on accessibility rights. I review the concept of discrimination (whichhas changed over time), the defmitions of disability and services, the defences built intothe legislation, and scope of the remedies available under that legislation. Human rightslegislation is a major tool to advance the interests of disabled people and it cannot bedenied 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 explainingwhy 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 toenforce accessibility rights. Chapter VI examines the Charter but, because there is almostno jurisprudence relating to accessibility rights, from a somewhat theoretical perspective.Ireview the general principles ofinterpretation, the scope ofthe Charter, and the equalityrights section. As with human rights legislation, the Charter includes provisions, foundin s. 1, for limiting the scope of the rights it guarantees. I examine this section closelybecause it is particularly in relation to the courts’ interpretation of s. 1 that I seesignificant problems with successfully using the Charter in the context of accessibilityrights. The courts have extremely wide remedial powers to enforce Charter rights. Idiscuss only two remedial options because, in my view, they are the most problematic foraccessibility rights enforcement and because of the close relationship with principlesreflected in the interpretation of s. 1. The concerns about the effectiveness of the Charterbecause of the interpretation of s. 1 are equally applicable to the principles which applyto remedies. As will be seen, there is significant overlap between human rights legislationand the Charter. This chapter finishes with a discussion of the overlap and some of thefactors which may incline a person to choose one avenue of remedy over of the other.Introduction 7Federal United States legislation has prohibited discrimination against disabledpeople since l973. There are many federal U.S. statutes that implement aspects ofAmerican public policy related to disabled people. I have selected only three for reviewand have structured my review around the themes ofimplementation by fmancial control,contract, and prescription. These statutes, the Rehabilitation Act, the Individuals withDisabilities Education Act,9 and the Americans with Disabilities Act, 1990,10 are oftenheld up by Canadians as models which should be substantially followed in Canada. Iexamine these Acts in detail in chapter VII because of their notoriety and becauseCanadians 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 donot contain a panacea for disabled people in Canada. To show that these models havetheir own limitations and weaknesses I conclude the chapter with a brief summary of theresults of two studies on the effectiveness of American disability legislation.In the 1 970s many disabled consumer groups began to use a “rights” argument toconvince legislators to add disability as a prohibited ground of discrimination to humanrights legislation. Building on that base, political action lead to the inclusion ofdisabilityin the equality rights section of the Charter. By 1985 mental and physical disability wereincluded in all human rights legislation as prohibited grounds ofdiscrimination. To datethere has been very little jurisprudence in the area of accessibility rights. There has,however, been significant improvement in accessibility in many parts of Canada. Disabledconsumer groups have used the legislation as part of a political strategy much more thanas part of a legal strategy. This conscious political decision has been strongly influencedby 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 8ment processes. In spite of the gains made by this approach, implementation ofaccessibility rights is still too slow.In the final chapter I propose a number of changes to improve the effectiveness ofthe implementation of accessibility rights. These measures, each of which on its ownwould improve implementation although they would be more effective if implementedtogether, are the promulgation ofclear standards for accessibility, the coordination oftheactivities of agencies which impact on accessibility rights, and the adoption of threeadditional enforcement strategies.Through human rights legislation the legislators have adopted a public policy ofnon-discrimination in relation to disabled people subject only to a bona fide justificationdefence. They have failed to provide any more guidance on how this policy is to beimplemented and this has contributed to the continuation of the denial of accessibilityrights. The legislators should establish a set of operating principles to direct theinterpretation of this policy so the regulators and the regulated know what is required bythe law.The various agencies which have an impact on accessibility rights should berequired to coordinate their activities so that the work of each agency complements thatof the others. This requirement for coordination applies to each of the three stages ofpolicy implementation, which are policy refinement, diffusion, and execution.The most effective way to implement accessibility rights is to prevent barriersbefore they are in place. I propose to place a clear duty of care on self-regulatingprofessions, such as architects, transportation engineers, designers, and others who designour structures and machines to hold them accountable within their professions and in lawfor negligently failing to implement barrier free design in all their work. This duty wouldplace accessibility rights on the agenda from the first day ofplanning and would distributethe cost for remedying problems among the people responsible for the problem in the firstplace.Introduction 9Institutions which regulate various industries such as transportation andconstruction should be the primary enforcement agencies for accessibility rights. Theseinstitutions are already familiar with the numerous systems which affect their industriesand are in a position to establish and enforce accessibility standards in the ordinary courseof their duties. Because they have input to every system which makes up their industrythey can identify and remedy potential accessibility problems even before individualsexperience a discriminatory act.To deal with the enormous stock of inaccessible structures and vehicles whichcurrently exist I propose that a system ofmandatory adaptation planning be establishedto complement the current enforcement strategy contained in human rights legislation.While adaptation planning is properly criticized as an exception to the general rule ofnondiscrimination, and in principle the cost ofimplementing a person’s fundamental humanrights should not be an excuse to deny those rights, human rights legislation and theCharter are influenced by the cost ofremedial action. Furthermore, the political climateof today, and the foreseeable future, is strongly influenced by fears that the variousgovernment 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 notbe corrected quickly or in an orderly and managed fashion using the currently existingimplementation tools. I propose an adaptation planning scheme as a mechanism toimplement a public policy offull integration ofdisabled people in a coherent and managedway so that the most people benefit the most quickly and the costs are shared widely bythe whole society.The Social Construct of Disability 10II. THE SOCIAL CONSTRUCT OF DISABILiTY:This chapter deals with the question of who the disabled are. I begin with anexamination of disability as a social construct and the complexity of the group labelled“disabled”. The problem ofdefming who is disabled is complex and continually evolvingin part because a number of social benefits derive from being labelled disabled, the natureof disabling conditions is seen to change (eg: the concept of learning disability isexpanding), and all definitions contain inherent uncertainties. The question ofterminology is important because words have an influence on attitudes, which in turninfluence the role and status ofdisabled people in society. After presenting some statisticsabout the population of disabled people, the social standing of disabled people will bereviewed. I will examine society’s traditional attitudes toward disabled people and howthose attitudes create barriers to equality for disabled people as much as the reallimitations caused by the disability itself. Finally, some of the economic consequences ofdisability will be examined.A. Who are the Disabled?i. Defmitions:The United Nations Declaration on the Rights of Disabled Persons defmes adisabled person as:Any person unable to ensure by himselfor herself wholly or partly the necessitiesof a normal individual and/or social life, as a result of a deficiency, eithercongenital or not, in his or her physical or mental capabilities.’The World Health Organization distinguishes ‘impairment’, ‘disability’, and1. United Nations Declaration on the Rights ofDisabled Persons, 1975. (The UN passed the Declarationon the Rights of Mentally Retarded Persons in 1971.)The Social Construct of Disability 11‘handicap’. An ‘impairment’, whether permanent or temporary, includes any “disturbanceor interference with the normal structure and functioning of the body, including mentalfunction”. A ‘disability’ is “the loss or reduction of functional ability and activity that isconsequent upon impairment”. A “handicap is the disadvantage that is consequent uponimpairment and disability”.2 Thus an impairment may or may not cause a disabilitywhich in turn may or may not result in a handicap. The extent to which a disabilityhandicaps a person is a function of the social reaction to the disability and how society isstructured to maximize the ability of people to pursue their interests and aspirations3,aswell as the nature of the disability itself.Since a number of social and economic benefits, as well as detriments, arise frombeing labelled disabled, definition is an ongoing problem. Defmitions and methods ofmeasuring disability and its functional consequences depend on who is making thedetermination and for what purpose. For example, many statistical surveys done bygovernment agencies use a self-identification system. For pensions, workers’compensation, or veterans’ benefits a restrictive medical defmition may be applied tocontrol access to the benefits. For vocational rehabilitation programs rehabilitativeprospects will be determinative. For admission to (or exclusion from) public schools amedical model may be used. For some of these programs there are benefits for theindividual in seeming as disabled and unproductive as possible; for others, the individualwill benefit from appearing less disabled.Three factors should be considered when determining whether a person is disabledand 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 presenceof a mental or physical impairment has been traditionally determined by the medical2. 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 12profession but increasingly others, such as psychologists, educators, and social workers,are now involved in this determination. A complication inherent in the WHO defmitionof impairment is that it is dependent on a concept of the normal physical and mentalstructure 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. Andwhat is considered ‘normal’ changes over time. 2) The impairment must result in afunctional limitation which must be seen as negative (neutral or advantageous variationsfrom the norm are not disabilities). 3) The functional limitation must be an impedimentto activities in which the person would want to engage. This is, to some extent, a circularargument because if a person can not do something, his/her interest in doing it will beaffected by the inability. Regardless, a functional limitation of a major life activity suchas seeing, hearing, walking, etc. is a disability which has an adverse effect on achieving ‘lifesuccess’. The extent to which a disability adversely affects the achievement of life successis ameasure ofthe impairment itself and its related functional limitations, the individual’sresponse to these limitations, society’s capacity to include a person with such animpairment, 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.4Determining whether a person is disabled for the purposes of entitlement to aparticular benefit may be done in a number of ways. 1) One could make a list of allknown physical and mental impairments recognized by themedical profession. Since sucha list could easily become so complex as to be effectively unusable, the list maker wouldhave to arbitrarily limit the endless possible modifiers used to describe variations on thebasic impairment. However, having made the list, a person’s entitlement to benefit from4. 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 ClearerDefinition of Handicap, in Allen D. Spiegel (ed.), Rehabilitating People with Disability into theMainstream of Society, at p. 58 et seq.The Social Construct of Disability 13any particular program could then be determined by identifying those impairments on thelist which the program administrators would accept as an acceptable qualification forparticipation in the program. This approach requires that an authority acceptable to theprogram administrators (usually a medical professional) declare the person has thenecessary impairment. Ifthe person is deemed to have the necessary impairment then thatperson can make use of the program. 2) Or, one could gear the definition to the purposeto be achieved. For example, to determine eligibility for a sign interpreter a person couldbe deemed to be eligible ifhe/she needed an interpreter to understand speech. The medicalreason for the need would not be considered, only the fact that the person could notcommunicate in the context without the interpreter. The difference between this optionand the previous one is that there is no need to fit into one of the listed impairments. Ifa sign interpreter allowed a person to understand the spoken words when that wouldotherwise 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 toactual need in the real world, if the authority acceptable to the program administratorssays 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 byestablishing a defmition within the context of the program authorizing instrument. Thisoption, of course, takes us back to the original problem of trying to devise a suitabledefinition ofthe types ofimpairment and their degree which a person must have to qualifyfor the program’s benefits.There is, then, no objective external measure of disability. It is always a questionof disabled for what purpose.5Human group labelling is a continually evolving process. Generally, any labeldescribing a thing society considers a negative attribute comes to have a negative social5. Burgdorf, ibid. pp. 7-8. Marcia H. Rioux, labelledDisabledand Wanting to Work, Research Papersfor the Royal Commission on Equality in Employment, p. 614.The Social Construct of Disability 14connotation. To avoid the negative connotation an interest group selects a new labelwhich soon enters mainstream usage. This usage then picks up a negative connotationand so a new label is selected and the process continues. Generally, with each change oflabel, there will be a reduction or elimination ofsome negative stereotype associated withthe label. “The power of words to affect people’s lives by subtly influencing theirconceptions of reality, emotional associations, and self-concepts should not beunderestimated.”6There is limited consensus on the appropriate term to use when discussing disabledpeople. While it is recognized that as between ‘handicap’ and ‘disability’ one term refersto 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 handicaprefers to a physical or mental impairment - from the concept of weighting, or adding aburden, to make the doing, or achieving, of something more difficult - while disabilitycomes from ‘dis-abiity’, or ‘not able’ to do something. Thus, a person whose lower leghas 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.7The 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 anadjective with the noun ‘people’. However, presently this term is widely disapproved ofand its retention in the names of groups is a matter ofnot changing a name selected whenthe 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 reallycaught 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 with6. Burgdorf, ibid, p. 48.7. Burgdorf, ibid, p. 5.The Social Construct of Disability 15disabilities’ are coming into more frequent use. Today in Canada the greatest degree ofconsensus can probably be gained for the use of the word ‘disability’ and its derivativesto describe mental or physical impairments that result in limitations to functional abilityand 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 incidentallydisabled. These are the terms that will be used in this thesis.8ii. Disability as Social Construct:Many writers have described how the life options ofdisabled people are limited bysociety’s response to the disability as much as, if not more than, by the limitationsimposed by the condition itself. A disability exists not merely as a medical pathology butas a complex combination ofmedical condition, individual response, social stigma, anda society designed for the statistically average person. “... Much of the inability tofunction that characterizes physically impaired people is an outcome of political and socialdecisions rather than medical limitation.”9The independent-livingmovement offers a radically different view of the problemof disability and its solution. According to representatives of the movement, theproblem of disability is one not only of physical impairment but also ofunnecessary dependence on relatives and professionals, of architectural barriers,and of unprotected rights. In this view the pathology is not in the individual, asthe medical model would suggest, but rather in the physical, social, political andeconomic environment that has up to now limited the choices available to peoplewith disabilities. The solution to these problems is not more professionalintervention but more self-help initiatives leading to the removal of barriers andto the full participation of disabled people in society.’°8. For a vigourous rejection of the use of the term ‘disabled’ see WolfWolfensberger, The Case Againstthe Use ofthe Term Visability in Spiegel, supra, fn. 4, p. 27. His argument is based on the etymologyof 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, PhysicalDisabilityandPub]icPoiicy, Scientific American, V.248, #6 (June 1983), p. 40 at p. 47.The Social Construct of Disability 16Jacobus tenBroek views disability in the following terms:For the most part it is the cultural definition of disability, rather than the scientificor medical definition, which is instnimental in the ascription of capacities andincapacities, roles and rights, status and security. Thus a meaningful distinctionmay be made between ‘disability’ and ‘handicap’- that is, between the ‘physicaldisability’, 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 ormental ‘disability’ as a medical pathology and ‘disability’ as a social category which limitslife options because society erects barriers to individual choice. It is another way ofdistinguishing the older terms ‘disability’, used to refer to the functional limitationsresulting from the medical condition, and ‘handicap’, used to refer to the way societyreacts to that condition. Some writers have coined the term ‘handicapism’ to explain thestatus of disabled people in society.[Handicapism’s] causes are the socially learned attitudes, preconceptions, andmisunderstandings of the able-bodied; the denial of usual rights andresponsibilities of other members of society; the stigma attached to disability; theexpectation that disabled persons have no future in normal social life; and theinaccessibility of the labour force and the benefits that come from that.”2Handicapism has also been used as a paradigm to fmd linkages between the waydisabled people have been marginalized as women and racial minorities have been. Itemphasizes the way factors not related to the medical condition limit the life options ofdisabled people.The concept ofhandicapism is a paradigm through which to understand the socialexperience of those who have previously been known as mentally ill, mentallyretarded, deaf, crippled, alcoholic, addict, elderly, deformed, deviant, abnormal,disabled, and handicapped. Handicapism has many parallels to racism andsexism. We define it as a set of assumptions and practices that promote thedifferential and unequal treatment of peoile because of apparent or assumedphysical, mental, or behavioral differences.The concept of ‘handicap’ or ‘handicapism’ is an important tool to identify how11. tenBroek, supra, fn. 3, p. 814. See also Rioux, supra, fn. 5, p. 614 and Myron G. Eisenberg, CynthiaGriggins, 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 17barriers erected by society magnify functional limitations on career and life optionsimposed by various disabling conditions. Some have taken this to the extreme ofsuggesting 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 notmagnify the restrictions on career and life options imposed by disabilities this positionmay 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 thepolitical arguments in favour of changes in public policy which are required to eliminatethe existing social barriers faced by disabled people.iii. Group Identity:The concept that disabled people as a whole have common characteristics whichcreate common group interests is relatively recent. However, it was only after this ideawas accepted, and disabled people formed groups based on the idea that there is a groupinterest that transcends interests arising from particular disabilities, that disabled peoplewere able to achieve significant changes in public policies affecting their interests.There are a number of reasons why the formation of groups which include peoplewith various kinds of disability, organized on the idea that there are common groupinterests, arose only recently, beginning in the early 1970s.First, the types of disabling conditions are diverse. Disability may arise from thechance 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 groupunifying factor. Organizations based on particular disabilities concentrated onimprovingservices for the people with those disabilities. Historically, disabled people have hadgroups form to deal with them, or themselves formed groups, based on the particulardisability. While other self-identifying groups such as women, blacks, or aboriginalThe Social Construct of Disability 18peoples were identifying common interests transcending their diversity, groups concernedwith particular disabilities were concentrating on their own particular concerns. Thediversity ofdisabilities was emphasized over the identification ofcommon group interests.Second, for the greatmajority ofdisabling conditions the functional consequencesof the disability vary widely. It is often difficult for a person to classify himJherself as adisabled or non-disabled person. A person might be of the group ‘disabled’ for somepurposes but not for other purposes. A person’s functional limitations may changedepending on the role then being acted out. Shifting perceptions as to whether one isdisabled make recruitment to groups interested in particular disabilities difficult enoughwithout the added problem of recognizing inter-group common interests. The negativeattitude towards disabled people is frequently held by disabled people themselves. Somecome to reject the negative image while others do not. This creates a tendency amongmany disabled people to segregate themselves from other disabled people as well as fromsociety at large. 14Third, for severely disabled individuals, at whatever age their disability arose, thereis the problem of isolation. Historically they disappeared from the ordinary work-a-dayworld. Segregated and invisible, they could then be ignored as the rest of the world wenton 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 givingsystem. Segregation from society was also segregation from each other.Fourth, disabled people come from all other groups in society, be those groupscharacterized by sex, race, national or ethnic origin, religion, age, or any number ofothercharacteristics. This diversity of origins of the group ‘disabled’ has meant that the bondsthat tie individuals to the group ‘disabled’ are generally much weaker than the ties binding14. Diane Driedger, Organizing for Change: A Histoiy of the Manitoba League of the PhysicallyHandicapped, 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 19them to their origin, or source, groups. Until recently, the fact of disability alone did notseem to be enough to identify a unity ofinterest, to allow disabled people to see themselvesas a distinct group with common group interests.Fifth, only recently have major advances in medical and rehabilitative science andtechnologies provided effective aids to disabled people which have increased their abilityto get out in the community and to control their own lives. Only when out in thecommunity, and able to communicate, did disabled people begin to fmd themselves andtalk about their common experiences.Sixth, there are more disabled people and more in different age groups than in thepast. Disabled people are no longerjust children who die young or elderly people waitingto die. As well as war, the modem industrial state causes injury to working age adults andmodern medicine keeps them alive. These people were out in the community and therebecame enough of them to find each other and compare experiences and futureaspirations. They were used to adult independence and wanted to maintain as much ofthat independence as possible. The traditional paradigms of disabled people did notaccommodate their interests.’5The characteristic common to disabled people has been, historically, that disabledpeople have been neglected, silenced and invalidated.16 The unifying factor is socialexclusion because of functional limitations or stigmatization.’7 This unifying factor isalso the reason that it has been a difficult and slow process to develop the idea thatdisability alone is enough to create a common interest.As disabled people began to develop a group consciousness they began toformulate 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) 38American Scholar 412. Gustave Gmgras and E. David Sherman (ed.), Human Rights for thePhysically 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 20and to recognize how their oppression has similarities to that of other sociallydisadvantaged groups. As group consciousness grows, disabled people will become evenmore 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 mustnot be allowed to mask the real differences in needs, desires, and interests of particularindividuals. The wide divergence of causes and types of disability leads to a complexdiversity of interests within the disabled community. Not all disabled people or groupswant the same thing or have the same vision of society.Generalizations that may be made about other disadvantaged groups, which maybe legitimately articulated to identify commonalities of interest and assist in developinga useful model to assist in counteracting the disadvantages experienced by them, areseldom relevant to the disabled community because of the enormous range of disabilitiesand personal and social reactions to them. Additionally, individual disabled people comefrom different communities. The interests the person has in that source community do notdisappear. Individuals should not have to give up their interests arising from membershipin other groups just because they become disabled. Disabled women, disabled aboriginalpeople, disabled blacks, etc., have multiple group interests. Disabled people who are alsomembers of another disadvantaged group may experience discrimination by othermembers of their source group as well as experiencing a double victimization based ontheir disability and their membership in the source group.iv. Some Statistics:In Obstacles, the 1981 report ofthe House ofCommons Special Committee on theDisabled and the Handicapped, the lack of a population based data base dealing withdisabled people was identified as a significant impediment to alleviating their social andeconomic problems. The Committee recommended that Statistics Canada give highThe Social Construct of Disability 21priority to the development of such a data base.’8Responding to this recommendation, Statistics Canada undertook a wide rangingsurvey of disabled Canadians as a supplement to the Canadian Labour Force Surveyconducted in October 1983 and June 1984 (the CHD Survey).19 This survey covered thepopulation 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 andlearning disabilities (but not mental illness). The survey collected data about disability inrelation to age, province of residence, type and severity of disability, limitations onactivities (such as travelling, self care, etc.), and participation in the labour force.Statistics Canada undertook another wide ranging survey, the Health andActivities Limitation Survey (the 1986-87 HAL Survey), as part of its efforts to developa thorough data base on disability issues, in the fall of 1986 (for residents of households)and the spring of 1987 (for residents of institutions).2° The survey sample was takenfrom the population of respondents to the 1986 Census who reported they were limitedin the kind or amount ofactivity they could do because ofa “long term physical condition,mental condition, or health problem”.2’Data was gathered for all disabilities includinglearning disabilities, emotional or psychiatric disabilities, and developmental delaydisabilities, except mental illness among children under the age of 14 years. Another HALSurvey was taken in 1991 following the 1990 Census.All the surveys used the WHO definition of disability. Adults, but not childrenunder the age of 14, who reported that the use of an assistive aid completely eliminated18. 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 havebeen published to date.The Social Construct of Disability 22the 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 surveyquestionnaires, and collected slightly different data (there being greater differencesbetween the CHD Survey and the two HAL Surveys) they cannot be used with a high levelof confidence to assess how the face of disability has changed over time. The statisticswhich follow are based on the HAL Surveys since they are the most recent comprehensivesurveys, unless otherwise noted. Data from the first HAL Survey is used where thepublished reports provide more extensive data.Table 1 shows that in 1986-87, 13% ofCanadians reported having a disability. 8%of the disabled population were 0- 14 years old, 54% were 15- 64, and 36% were over age65. 5% of the 0- 14 age group, 10% of the 15-64 age group, and 45% of the over 65 agegroup reported having a disability. Considering only the 15 and over age group thissurvey showed 15.4% of the population reporting a disability. This accords well with a1978-79 Canada Health Survey which showed 14.3% of this age group reporting adisability. 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 groupreporting a disability: age 0 to 14- 7%, age 15 to 64- 12.9%, and age 65 + - 46.3%, totalpopulation - 15.5%. The increase occurred among those reporting a mild disability andcan be attributed to an aging population as well as changes in the survey methods.2323. 1991 Health andActivity Limitation Survey, The Daily, Statistics Canada, October 13, 1992, pp. 2and 4.The Social Construct of Disability 23Table 1: Total Population and Disabled Population by Age Group240-14 15-64 65+Population 5,325,185 17,051,420 2,684,66025,061,270 21.2% 68.0% 10.7%Disabled Population 277,300 1,817,580 1,221,9953,316,875 (13%) 8.36% 54.79% 36.84%% of disabled age groupDisabled Population 5.20% 10.65% 45.51%% of total age groupTable 2 shows the vast majority of disabled Canadians of all age groups live inhouseholds but the percentage ofdisabled people living in institutions jumpsmarkedly forthe age 65 and over group. Table 3 shows a marked increase in the percentage of severedisabilities in the over 65 age group but this increase is not as large as the jump ininstitutionalization of this age group.Table 2: Disabled Population by Age and Residence:250-14 15-64 65+Total Disabled Population 389,355 2,346,455 1,448,875Disabled Population Living in 389,355 2,297,179 1,235,890Households 100% 97.9% 85.3%Disabled Population Living in 49,275 212,984Institutions-- 2.1% 14.7%Table 4 shows the type ofdisability by age group and TableS shows the types andfrequency of the use of assistive devices. Tables 3, 4, and 5 show how varied disability24. 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 1991survey but the 1986-87 HAL Survey reported an estimated 2,400 children with disabilities ininstitutions (0.9% of disabled children).The Social Construct of Disability 24conditions are in the population and make it clear that planning for full integration willrequire consideration of a large number of variables. The frequency of the various typesofdisability, their severity, and the use ofdifferent types ofassistive devices may well havean impact on the policy decisions about how, when, and where to make the necessaryprovisions for a full integration policy to be implemented.Table 3: Percentage of Total Disabled Population by Age Group and Severity260-14 15-64 65+Mild 89.5 53.8 35.1Moderate 7.6 31.4 32.5Severe 2.9 14.8 32.4Table 4: Type of Physical Disability by Age270-14 15-64 65+Mobility 37,350 1,047,825 752,925Agility 15,525 916,840 621,560Seeing 27,770 204,360 241,515Hearing 47,970 417,235 443,620Speaking 37,110 117,210 53,725Other 26,235 495,565 266,85526. 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” forthe 0- 14 age group and for the other two age groups as “learning disabled, emotional or phycologicaldisability, or developmentally delayed”.The Social Construct of Disability 25Table 5: Number of People Using of Assistive Devices by Age Group28Type of Device 0 - 14 15 - 64 65 +Wheelchairs 8,710 46,030 47,130Crutches and other walking aids 5,440 142,995 231,290Medically prescribed footwear 23,200 22,445 10,260Artificial limbs 920 11,115 6,290Hearing aids 11,670 67,865 164,275Vision aids other than glasses 3,055 62,525 108,105Brace other than braces for teeth 14,605 51,640 13,690Other aids 24,495 47,880 19,005Table 6, based on the 1983-84 CHD Survey, sets out the degree of dependence inperforming everyday tasks in the over age 15 group. The 1986-87 HAL Survey reportedon the number of people ‘getting help with’ and ‘needing help but not receiving any’ fora similar list ofeveryday tasks but not the level ofdependency. Although the HAL Surveyreported about 600,000 more disabled people in this age group, it reported substantiallyfewer people getting or needing help for each of the similar activities.29 The differencesare so significant they can not be explained as chance variations. The differences mustreflect the uncertainty inherent in measuring many aspects of disability.28. Based on data from the 1986-87 HAL Survey, ibid29. 1986-87 HAL Survey, ibid, pp. 3-11, 4-5, and 4-7.The Social Construct of Disability 26Table 6: Disabled Persons by Degree ofDependence Performing Everyday Activities (age15 and over, in thousands).3°Total Dependent Partially Indepen- UnableDepen- dent todent AssessShop for Groceries or 2,448 588 320 1,309 156NecessitiesGet Around in own 2,448 347 135 1,845 46Neighbourhood orAreaDo Heavy Household 2,448 980 350 819 222Chores, Gardening orYardworkDo Everyday Work 2,448 319 210 1,610 230within Home, IncludingCookingGet Around within own 2,448 67 62 2,224 18HomeTake Personal Care of 2,448 107 81 2,163 18OneselfB. 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 27or left to the mercies of Church or religious based charity.32 As governments becamemore involved with disabled people in the twentieth century the approaches and attitudesof before were simply transferred to the new custodians. With disabled people removedfrom society, society could go about its business without regard to their needs. Theabsence of disabled people from mainstream society meant that negative attitudes couldcontinue to flourish in the absence ofany need to confront disabled people and their needsor to confront the reality that the currently able bodied could at any time becomedisabled. Disabled people are portrayed negatively in the media, television and movies,and literature and are subject to “prejudice resting on superstition, misunderstanding, andfalse concepts of capacity to work”.33 Having no experience of interacting with disabledpeople “discomfort or embarrassment on the part of those with whom he or she comesinto contact is an everyday occurrence of many handicapped people”Adults tend to be turned off when they see obvious disabilities, feeling guilty andembarrassed and wishing that they could get away. While the teenagers tend tofeel somewhat awkward, they are more likely to be sympathetic and to try to relateto the disabled persons as individuals, or on an equal basis.35The 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 recognize32. Disabled Persons in Canada, pp. 16 et seq. The late 19th and early 20th centuries saw a number ofnon-sectarian charities established: for example, Canadian Red Cross, 1896; Victorian Order ofNurses, 1898; Hospital for Sick Children (Toronto), 1875; Canadian Tuberculosis Association (nowthe 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,DisabilityandMonstrosity: A look at Literaty Distortion ofHandicapping Conditions and Bogdanand 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, inEqua]ityRlEhtsandtbePhysicallyHandicapped, in Anne F. Bayefsky and Mary Eberts (eds), EqualityRights and the Canadian Charter of Rights and Freedoms, p. 323 at p. 327, reduce the influence ofanimus and scorn towards disabled people and emphasize the attitudes of”pity and charity” in shapingsociety’s relationship to disabled people.36. Burgdorf, supra, fn. 4, p. 49. Kriegel, supra, fn. 16. Life Together, szipra, fn. 34, p. 73. DeJong andLifchez, supra, fn. 10, p. 47.The Social Construct of Disability 28factors which qualify them. The amount of segregation and inequality depended, anddepends, 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, medicalscience and technology could provide profoundly disabled people only a low level oftechnical 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 therefusal of society to accommodate the needs of disabled people.37Building up the skills of disabled people is only a partial answer to the problem oftheir isolation. In addition to their impainnents, disabled people may beconstrained by what others permit them to do and where others permit them tobe. These constraints may be the product of discomfort or of sincere concern onthe part ofable-bodied gatekeepers. Whatever the motivation, the life chances fordisabled people become limited by much more than their actual disabilities.38Marcia H. Rioux has described four paradigms commonly used to analyze the roleof disabled people in society.391) Disability as Sickness: A person with a disability is defmed as sick and treatedaccordingly; the medical profession tries to cure the sick patient; “The sick roleassumes a loss of rights related to the condition or disease”. The patient looks tothe 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 doctorsay if a person is fit to work, and the role of the profession in setting medicalrequirements for driver licences. Energy, both personal and social, is spent tryingto “cure” the sick person instead of modifying society to allow the individual37. Jacobus tenBroek, The l?iht to Live in the World: The Disabled in the Law of Torts, (1965) 54California Law Review 814 at p. 816: “The custodial attitude is typically expressed in policies ofsegregation 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 29maximum free choice.4°2) Disability as Deviance: A person is seen as different in a negative way fromsocial norms. The deviance model emphasizes social and behaviourial peculiaritiesexhibited by the person. This may be taken as justification to isolate the personand remove rights and responsibilities because of the inferior status of the person.There is the presumption that care and treatment can best be determinedby others, ranging from family to experts. The deviant person is strippedof his/her ability to make independent judgements.4’3) Disability as Charity: In return for “being kept” by society, the disabled personmust be grateful for what the care-givers choose to give. The gulf between thedisabled recipient and the able-bodied giver is maximized in terms of power andsocial standing. The claim on society is reduced to what magnanimous peoplechoose 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.424) The ‘Beggar’ Stereotype: This involves the untested assumption that thedisabled person is destitute and lacking in dignity and pride. A beggar is seen asa personmaking no economic contribution and taking no responsibility for his/herown lot in life. The effect is to further stigmatize people and a self-perpetuatingcycle is established which maintains the individual in his/her marginalized socialposition.43ii. Barriers:The barriers disabled people face include legal, social, economic, and40. 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 30medical/technological. With the possible exception ofthe last, the barriers exist primarilybecause it has been the able bodied who arranged the world to suit their needs. Theabsence of disabled people from society has allowed the others to simply not think aboutthe needs of disabled people.Fourmajor 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.44Social biases against disabled people, as has been seen, are deeply ingrained inWestern cultures.45 This bias is a significant barrier to disabled people wishing to enterthe mainstream of society and make their full contribution. This bias may take the formof hostility towards disabled people individually and as a group. Widely held negativestereotypes about disabled people support the stigmatisation of the group. People whoare ignorant about and uncomfortable in the presence of disabled people have noinclination to inform themselves about or get to know any disabled people. Fear ofbecoming disabled themselves, through disease or accident, is also a significant influenceon people’s attitudes. Social bias may also be manifested by paternalism. Although thisattitude is presented positively, it is still a significant barrier to the individual autonomyof disabled people. Paternalism can, of course, also mask an underlying animus. It isprobably impossible to separate the influence of stigmatization and paternalism in thepolicy decisions of the early 20th century to institutionalise mentally and physicallydisabled individuals. When considering the many employment policies prohibiting thehiring of disabled people, the concern for the person’s safety and the interest in avoidingcompensation claims are frequently inextricably mixed.44. Mark E. Martin, Accommodating the Handicapped: The Meaning ofDiscrimination unders. 504 oftheRehabilitation Act, 55 NYU Law Review 881(1980). See also Yvonne Peters, Defining Equality,Patricia Hughes, Discrimination andRelated Concepts: Defmitions andIssues, 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 31Many facially neutral standards have an adverse effect on the opportunities ofmany disabled people. The essence of this type of barrier is that the standard is neutralin the sense that it makes no reference to disabled people. However, while the vastmajority 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 standarddisproportionately excludes a group of people because of their group characteristic.The barrier exists because the standard maker has chosen a standard which excludesdisabled people instead ofone which could achieve the same objective without restrictingdisabled people.Architectural barriers are prime examples offacially neutral standards which havean 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 couldtransfer to a regular seat and replied he could not. He was told that the only place hewould 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. TheSaskatchewan Court of Queen’s Bench rejected the complaint saying that the theatre hadoffered Huck what it offered the public, viz, a movie and a seat, and it was Huck’sdisability that prevented him from accepting that offer, not a discriminatory act by thetheatre. The Court ofAppeal reversed, holding that the treatment Huck received had theeffect of restricting his opportunity to enjoy the public service in a way comparable toothers because of his disability.47 The theatre was required to ensure people usingwheelchairs were accommodated by providing a choice of spaces from which they andtheir friends could view a movie.46. Gnggs v. Duke Power 401 U.S. 424 (1971). The principles of adverse effect discrimination wereadopted 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  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 32In Canadian Paraplegic Association v. Canada (Elections Canada)(No.2,t8several people complained they were unable to vote or were subjected to differential, andin some cases, embarrassing and unsafe, treatment because their polling booths for the1984 federal election were not accessible. The Tribunal held that they had beendiscriminated against by the failure to ensure the polling booths were accessible to peopleusing wheelchairs. The adverse effect stairs have on users of wheelchairs is obvious.However, there are thousands of examples of standards which adversely affect somedisabled people. For example, even if a public telephone is properly signed so a blindperson can fmd it and the telephone is lowered so a person using a wheelchair can reachit, a person using a hearing aid will be unable to use the standard telephone receiverbecause it is incompatible with the hearing aid. Compatible receivers are readily availablebut some decision maker must decide to install them.A related barrier occurs when a disabled person could use a service if certainelements were modified to accommodate the special needs of the person. Mark Martinrefers to this type ofbarrier as a “surmountable impairment barrier”. In this situation, thedisabled person could use the service if some alterations to the usual requirements weremade to accommodate, or take into account, the functional limitations caused by thedisability. Sometimes this requires only an exception to the general rule and sometimesit requires a permanent alteration to the environment. In 1979 Yvonne Peters wanted tovisit 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 generalno 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 rulethat 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. The48. (1992) 16 C.H.R.R. D/341 (Fed. Tribunal).The Social Construct of Disability 33Hospital refused to make an exception for guide dogs. Four and a half years later theSaskatchewan Court of Appeal held that Peters had been discriminated against by therefusal of the Hospital to amend its general rule to accommodate Peters’ disability.49The difference between these two barriers is that the first (neutral standards havingan adverse effect) is a based on passive discrimination while the second (failure toaccommodate) is based on active discrimination. In the case of wheelchair access theservice provider delivers the service from a particular building. Inmost cases the providerhas not designed the building and simply takes it as it is. In the case of the hospital theadministrators actively thought about and made a rule which they would not vary toaccommodate the visitor. These two barriers are very similar and some may well arguethat distinguishing them to emphasize active versus passive discrimination is not helpful.Sometimes a person’s disability is of such a nature that no reasonableaccommodation is possible. This person is facing, to use Martin’s phrase, an“insurmountable impairment barrier”. A disability may present an insurmountable barrierbecause it really is insurmountable or because of a policy decision that the amount ofaccommodation which would be required is unreasonable.iii. Consequences:The consequences of these social attitudes and barriers are cumulative. Forexample, 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 adisproportionately 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 34Table 7 shows that in the order of one third of disabled people reported havingexpenses related to disability but not reimbursed by any insurance or governmentprogram. Since the HAL Survey did not report on the amount of money spent, Table 8reflects the CHD Survey results on amounts spent but that survey did not report on thepurpose of the expenditures. Note also the different total disabled populations.Table 7: Number of People Having Expenses Related to Disability Not Reimbursed byany Insurance or Government Program5°0-14 15-64 65+Total Disabled Population 277,300 1,817,580 1,221,995Total Having Expenses 81,235 651,950 330,720Prescription and Non-Prescription Drugs 41,230 465,420 207,005Special Clothing, Aids, Medical Supplies 37,380 140,630 75,775Non-insured Health and Medical Services 12,010 119,685 49,275Transportation 29,250 189,645 92,505Personal Services (Attendant, Home Care) 6,975 56,010 64,515Modifications to Residence 4,575Tuition or Residence Fees 10,800Other 10,845 73,460 30,090According to the Canadian Health and Disability Survey51,compared to the 25%of the adult population (age 15-64) who are not in the labour force, 52% of disabledadults ofthat age group are not in the labour force. However, considering only those whowere in the labour force, the unemployment rate for disabled persons was 13.3% comparedto 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 35Table 8: Amount of Expenditure Related to Disability, age 15 and over:5215-64 65+Total Disabled Population 1,537,000 910,000No Extra Expenses 926,000 561,000Extra Expenses 564,000 314,000$1 - 199 201,000 138,000$200-499 181,000 98,000$500 - 999 88,000 38,000$1,000 and over 66,000 22,000Not Stated 74,000 35,00052. Based on data from the CHD Survey, supra, fn. 19.53. Based on data from the CHD Survey, supra, fn. 19.age 15-64,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 labourforce.Table 9: Disabled Persons by Degree of Disability and Labour Force Status,in thousands53Some Moderate Major Degree TotalDisability Disability Disability UnknownEmployed 449 112 25 88 675Unemployed 58 21 2 17 98Not in Labour 379 183 118 85 765ForceTotal 886 316 145 190 1,538The Social Construct of Disability 36Table 10 shows that disabled people who were employed were distributed amongoccupations 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 representedcompared 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 GroupingTMDisabled Disabled Non- Non-(thousands) (% of total Disabled Disabledgroup) (thousands) (% oftotalgroup)Managerial/Administrative 48 7.1 916 8.8Sciences 20 2.9 552 5.3Teaching 23 3.4 491 4.7Artistic/Recreation 10 1.5 157 1.5Clerical/Sales/Services 285 42 4286 41.0Agriculture 60 8.8 487 4.6Fishing/Forestry/Mining---- 151 1.4Processing/Assembling 85 12.6 1242 12.0Construction 33 4.8 593 5.7Transportation/Materials/ 46 6.8 661 6.3HandlingOthers 65 9.6 884 8.5Totals 675 100 10,420 100The social and economic status ofdisabled people is currently unsatisfactory from54. Based on data from the CHD Survey, ibidThe Social Construct of Disability 37the point of view of disabled people themselves and in a society which claims to place ahigh value on equality and human dignity. In the next chapter I will discuss the nebulousconcept 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 disabledpeople” to reflect the desire for change without any implication that the interests of alldisabled people are the same. It is indeed because there are many competing concepts ofequality and disagreements about the best way to achieve equality that it is particularlydifficult to reach consensus on public policy.Equality and Non-Discrimination 38flJ. EQUALITY AND NON-DISCRIMINATION:Canadian law has not developed a definite philosophy of equality.’ Although aconcept of substantive equality has been utilized by the Supreme Court of Canada, andthere are signs that it will become the theory of choice when interpreting the Charter,2there is no certainty that it will survive the inevitable attacks upon it3 nor that it willspread to lower courts, and still less that it will become a basic principle upon whichpoliticians and bureaucrats fashion public policy.This chapter will review the traditional conimon law notion offormal equality andsome ofits weaknesses. The developing concept of substantive equality will be reviewed.Since simply adopting a theory of substantive equality does not completely describe theface of equality for disabled people in modern Canadian society, some of the ways inwhich substantive equality may be implemented will be canvassed. The full integrationequality paradigm will be reviewed in detail and recommended as the most appropriatesince it calls for a society based on inclusion, not exclusion, and respect for individualchoice within the context of communal responsibility for all members of society. Thechapter ends with a briefreview ofmechanisms which control and limit the equality claimsof disabled people.1. Honourable Kenneth H. Fogarty, Equality Rights and Their Limitations in the Charter, p. 1. Seechapter VI for a review of the current interpretation of the equality rights section of the Charter. TheSupreme Court of Canada has devised a concept of equality based on the absence of discriminationbecause of a ground enumerated in s. 15(1) or analogous to such a ground. However, the parametersof this description of equality are still unsettled. Despite the pronouncements of the Court to date, inmy view the definition of equality in Canadian law is still sufficiently fluid that Fogarty’s observationremains accurate.2. Shelagh Day, The Process ofAchieving Equality, in Human Rights in Canada, p. 17 at p. 19: “... asubstantive model of equality has been developed over the last five years in human rights andconstitutional equality rights jurisprudence.”3. See generally Joel Bakan, Constitutional Interpretation and Social Change: You Can’t Always (JetWhat You Want (Nor What You Need), (1991) 70 Canadian Bar Review 307.Equality and Non-Discrimination 39A. The Elastic Concept of Equality:Equality is an ancient concept, dating back at least to classical Greece in thewestern tradition. It is an essential philosophical concern and a basic tool of politicalpropaganda. Equality has attracted the attention ofmajor philosophers throughout theages and the debate has still not reached a defmitive conclusion. Because of itsphilosophical elasticity, equality has been, and remains, a potent political concept used bythose 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 mustspecify or assume some standard against which things are to be compared and the conceptof equality does not prescribe that standard ofmeasurement. Thus, in itself, the conceptprovides no guidance to decision making. Since the standard must be found in some otherrule, the rule of equality is superfluous.4 “To the extent that a statement of equality isframed in non-tautological terms, it will, in Professor Weston’s terms, ‘logically entail(and necessarily collapse into) simpler statements of rights’.”5Despite the philosophical concerns of Westen and others, I think it is becauseequality is not a self-defining concept that it is enlisted in support of widely differingpolitical views. As Kenneth Karst has said, equalityis not a philosopher’s universal, but a culturally specific and evolving ideal. Theideal not only h substantive content; it ia a cluster of substantive values, withmoral underpinnings solidly based in a particular society’s religious and4. Peter Westen, The Empty Idea ofEqziaiity, (1982), 95 Harvard L.R. 537 and To Lure the Tarantulafrom its Hole: A Response, (1983), 83 Columbia L.R. 1186.5. Marc Gold, Moral and Political Theories in EquaiityRightsAdjudication, in Joseph M. Weller andRobin M. Elliot (eds.), Litigating the Values of a Nation: The Canadian Charter of Rights andFreedoms, p. 85 at p. 91. In a similar vein, but criticising the concept of “rights”, Mark Tushnet, in AnEssay on Rights, (1984), 62 Texas L. R. 1364 at p. 1379 argues the concept of rights can not justify aclaim for some desired objective because rights are essentially indeterminate: “Fundamentalindeterminacy occurs because rights have a social context. When we try to specify a particular rightin some localized area, we discover that we have committed ourselves to a description of an entiresocial order.” See also Elizabeth Kingdom, What’s Wrong with Rights: Problems for Feminist Politicsof Law, in which she argues rights discourse can not advance the feminist agenda and may even be ahindrance.Equality and Non-Discrimination 40philosophical traditions.6The degree of consensus on the meaning of equality varies among societies andover time. Societies in which there is a high degree of consensus on the substantivecontent, in other words, which have agreed on the cluster of values incorporated into theconcept, will be stable societies. In those circumstances the appeal to equality strikes apopular chord and reinforces the status quo. Societies in which the selection of valueswhich provide the substantive content for the concept is in dispute are societies in a stateof change.7The concept of equality is an essential element of our culture and we are in stateofchange. it is, therefore, necessary to argue for a formulation of the concept which willadvance the interests one seeks to advance.For any theory ofequality to be useful in informing debate about social policy itmust be theoretically sound, useful for formulating social policy, and “embedded withinan overall desirable context, rather than seen as the only important goal.”8Section 15 of the Charter ofRights and Freedoms9speaks of “equality” whilstmost human rights legislation’° speaks of”prohibited grounds of discrimination”. Does6. As cited by Lynn Smith, A New Paradin for Equaiity Rzghts, in Lynn Smith et al. (eds.), Rightingthe Balance: Canada’s New Equality Rights, p. 353 at p. 361. See also Rosalie S. Abella, The Socialand LegalParadigms ofEquality, (1989) 1 W.R.L.S.I. 5 at p. 5: “[equality] cannot be constructed inthe abstract, but rather derives contextually from its social and political antecedents”, and MargritEichler, Applying Equality to Employment, in Research Studies of the Commission on Equality inEmployment 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 societydescribed in 124 by George Orwell.9. Part I of the Constitution Act, 1982 [enacted by the Canada Act, 1982 (U.K.), c. 11] (hereafter referredto as the “Charter”):15. (1) Every individual is equal before and under the law and has the right to the equalprotection and equal benefit of the law without discrimination and, in particular, withoutdiscrimination based on race, national or ethnic origin, colour, religion, sex, age or mentalor 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 41a different result occur if an issue is viewed as a demand for a right to “equality” or as ademand 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 negativestatements of the same principle.”1’ Thus, the remedy that is sought from a complaintunder human rights legislation should be, in effect, a step towards greater equality for theindividual 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 andunequals treated unequally in proportion to their mutual inequality. Aristotle recognizedthat his approach failed to establish criteria for determining who was equal to whom, orwhat factors should be considered in assessing whether two people were equal or unequalto each other and he did not try to provide them.’2 The political and social consequencesof his theory were an “elite meritocracy”3within a society exhibiting gross inequality.Despite its short-comings, the Aristotelian ideal has informed dominant Westernphilosophies of equality up to the present day. it is also the philosophical underpinningof 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 CanadianCharter of Rights and Freedoms, p. 105 at p. 114. She refers to the Inter-American Court of HumanRights case, Amendments to the Naturalization Provisions ofthe Constitution ofCosta Rica, (1984),5 Human Rights L.J. 161 at 183, perPiza Escalante J.: “it appears clear that the concepts of equalityand nondiscrimination are reciprocal, like the two faces of one same institution. Equality is thepositive 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] andPoliticalRights, in de Mestral et al. (eds.), The Limitation of Human Rights in Comnarative ConstitutionalTw, 1986, p. 281 at p. 283, where he says: “The non-discrimination principle is merely the negativeformulation of the equality principle.”12. Fogarty, supra, fn. 1, p. 1. Anne F. Bayefsky, Defining Equaiity Rigbts, in Anne F. Bayefsky andMary 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 42At 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’sequality was purely formal... Thus, all individuals were treated as equals by the law, whilethey lived their lives in relations of radical inequality.”4Formal equality refers to equality in the form of the law and it is variouslyformulated as requiring that like be treated alike and unlike unlike, or that thosewho are similarly situated be treated the same. According to this theory, equalityobtains if the law, in its form, treats men and women the same, or able-bodied anddisabled persons the same, unless they are differently situated.15Formal equality is a process oriented concept variously described as “equality oftreatment” or “equal treatment”. Another variation is “treatment as an equal” whichimplies “using a more diffuse norm ... to recognize the inherent worth and dignity ofmenand women and an entitlement to appropriate treatment accordingly.”6ii. The Failure of Formal Equality:Formal equality is incapable of achieving an equal distribution of benefits andopportunities among the members of society, or even, more modestly, eliminatingdiscriminatory barriers, for two main reasons.First, formal equality defmes equality as sameness and difference not dominanceand subordination and, therefore, ignores the cause of inequality. This theory is based onthe false belief that individuals have equality ofopportunity (and inequality is just a lapsefrom this norm) and that those differences which are considered to matterjustify unequaltreatment. In fact, most individuals make equality claims because their group membership14. 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 onEquality in Employment p.299 at p. 300. Contrast Ronald Dworkin’s formulation, in Taking RightsSeriously, 1977, that treatment as an equal means being treated with equal respect and concern.Equality and Non-Discrimination 43has caused them to be in a subordinate position and to be treated less favourably. In thecontext of formal equality they must argue their difference is not a difference that shouldmatter, instead of recognizing that the difference is due to their subordinate position insociety and arguing they should not be in a subordinate position.’7This leads to the second problem. When making a claim for equal treatment onemust compare oneself to someone else who becomes the norm against which your claimto equality is measured. In the context of sex discrimination, although described assameness, it is really maleness that is the norm and femaleness is seen as deviation fromthe norm. Thus, when inequality is caused by a biological or social fact affecting onlywomen there can be no remedy because there is no legal inequality. With formal equalitydisadvantage is made to disappear and this is justified and perpetuated because there isequality as long as people are subject to the same law and administrative procedures.’8The 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 theequality claims of disadvantaged groups, including disabled people, is the theory ofsubstantive equality. ‘Substantive equality means equality in the substance of one’s condition... [Itrequires] real remedies for conditions of inequality.2017. 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 ofresult”; Katherine Swinton, Restraffits on GovernmentEfforts to Promote Equaiityin Employment:Labour Relations and Constitutiona] Considerations, in Research Papers of the Commission onEquality 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 44As a legal paradigm of equality this concept requires, in considering whether aparticular law or practice violates the principle of equality, that one begin by asking if ithas an adverse impact on the complainant. Then one must determine whether its purposeor effect is to reduce social stratification or disadvantage. If it does, it moves towardsequality and no violation of the principle ofequality exists. The same is true if it is neutralas to disadvantage. If the measure widens the gap unjustifiably it moves away fromequality and violates the principle ofequality.21 Of course, unless one assumes there cannever be a justification for widening the gap, the word “unjustifiably” presents the samephilosophical conundrum: when is it justifiable to widen the gap?Substantive equality can be sub-divided into weak and strong senses. In its weaksense it can require temporary measures to limit program benefits to a particulardisadvantaged group or provision of longer term supportive activities such as child careor mentoring services or, in its strong sense, it may demand the long term redistributionof wealth and opportunity so as to bring about the desired objective. In the weak senseit may mean taking account of a group factor such as disability by eliminating artificialbarriers or providing limited and inexpensive assistance to permit equality of result.22In the strong sense it may mean the imposition of quotas or redirecting significantresources to enable disabled people to enter mainstream society.2321. 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 ofInquiry order that Odeon Theatres hadto modify its cinema so that patrons who use wheelchairs have a choice of places to sit in the cinemaand 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 substantiveequality. It requires employers to devise an “action plan” to identify and remove artificial barriers toemployment of target group members and the development of goais and timetables to attain arepresentational workforce. It does not require or authorize employment quotas.23. In CanadianNationalRazlway Co. v. Canada (Canadian Human Rights Comrnission)(Action Travaildes Femmes)  1 S.C.R. 1114, 8 C.H.R.R. D!4210, the Court upheld a Tribunal order whichcombined examples of both weak and strong substantive equality. Reflecting the weak sense theTribunal ordered CNR to stop using the discriminatory Bennett Mechanical employment test, applyphysical test requirements applicableequally to women and men, and to revise its system of publicizingemployment opportunities. Reflecting the strong sense, it also upheld the order which required CNRto hire one woman for every four hires until women represented 13% of the workforce which was theirEquality and Non-Discrimination 45Affirmative action, a particularly useful tool for promoting equality, is particularlydifficult to reconcile with formal equality theory. Professor MacKinnon has said usingformal equality in the context of affirmative action requires contorting logic to thebreaking point: giving a reverse preference is still a preference on the basis of race or sex,etc. 24Substantive equality rejects the formal equality ideal that decision making shouldtake no account of race, sex, disability, etc. Abella, attempting to dismiss the conflictbetween group rights and individual rights in the context of substantive equality theory,says that individuals experience discrimination because of group characteristics. Sheattempts to make the conflict disappear by arguing that:The group becomes an evidentiary collaborator in assessing the merits of anindividual’s claim. It is the individual’s right to equality, notwithstandingmembership in a group, but also the individual’s right to equality based onmembership in a group... The question is whether equality exists, not whetherindividual or group rights prevail.25MacKinnon takes a blunter, and more clearcut, approach. She argues that formalequality should be openly rejected and dismissed as being an inappropriate theoreticalbasis for structuring society. Using substantive equality theory allows one to recognizethe 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 equalitybased on the ideal that everyone should be treated the same when he lives in an unequalsociety. He may have to make his contribution to correcting the age old dominance hisgroup has enjoyed. “To intervene to alter this balance ofadvantage is not discriminationrepresentation 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 46in reverse, but a chance for equal consideration for the first time.”26Substantive equality, or “equality of outcome”,.recognizes the possibility, indeed the inevitability, of inequality of treatment inthe achievement of equality of outcome.... It rejects “fair play” as an objectiveand adopts instead “fair shares”. it is implicit in the objective of equality ofoutcome that some inequality of treatment may occur in achieving the ob,jective,but that the significant value for equality is substantive, not procedural.2iv. A Role for Both Formal and Substantive Equality:While substantive equality is an approach which can create real change in society,28 .formal equality still has its proper role. A person subject to negative differentialtreatment because of some arbitrary, unreasonable, or unfair action by some regulation,public official, or private enterprise should be able to claim equality of treatment. Forexample, a white middle aged man who is refused ajob because the personnel officer justdoesn’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 isfundamentally different from a man who is refused a job because the employer has acarefully crafted affirmative action program to overcome a history of discriminationagainst women. “Substantive equality would come into effect where a claim is made thata 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 “sexinequality theory” for substantive equality. According to Marc Bossuyt, supra, fn. 9, at p. 285 theInternational Covenant on Civil and Political Rights permits the remedial measures part ofaffirmativeaction but “in no case may someone be deprived of a basic right under the pretext that doing so wouldhelp 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 actionprograms 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 theCoalition of Provincial Organizations of the Handicapped, (COPOH), p. 11.29. Ibid, p. 12.Equality and Non-Discrimination 47The adoption of a theory of substantive equality does not imply a doublestandard. Clearly, one of the primary goals of disabled people is to be integratedinto the community. This involves taking the same risks and same responsibilitiesas everyone else. A substantive approach to equality does not negate this goal.Instead, it provides a mechanism for asserting such demands as reasonableaccommodation, affirmative action programs, special tax deductions and accessto the built environment. A theory of substantive equality legitimizes the goal ofensuring equality of results.3°The defmition of equality adopted for this thesis is situated within the context ofa liberal democratic/mixed economy philosophy, modified, as suggested by RonaldDworkin,3’to incorporate the responsibility of the community for the welfare of each ofits members. The interests of disabled people are promoted by principles which empowerindividuals 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 beencontrolled by others and limited in life options by an uncaring society.The theory, or concept, of substantive equality meets these criteria. Substantiveequality seeks to achieve the reduction of economic stratification and disadvantageexperienced by certain groups so that each individual may maximize the opportunity toshare the benefits and opportunities our society offers. It is an approach that is able totake into account the reality that the functional limitations ofdisabled people may requiredifferent treatment to achieve true equality and, through its continuing ties to liberalpolitical 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 forthe collective interest and reliance on legal positivism and utilitarianism. He proposed a liberal theoryof law which would give a primary place to individual human rights which, he said, could not besurrendered by decision of the majority for the common good. He argued the fundamental right ofall people is the right to equality, which he defined as the right to be treated as an equal, i.e., with equalrespect 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 essentialpart of their nature.Equality and Non-Discrimination 48B. Approaches to Equality for Disabled People:A failure to identify and adopt a particular approach to equality seriouslydiminishes the effective implementation of public policy dealing with the interests ofdisabled people. Stephen Percy, in his book dealing with the implementation ofdisabilitypolicy in the United Sates, reviews the three equity paradigms which have been used orargued for at different stages in the history of the implementation of s. 504 of theRehabilitation Act, J97932 These paradigms were equality as equal treatment, equalaccess, and equal outcome. The first two paradigms aremanifestations offormal equalitytheories while the third reflects principles of substantive equality. He argues that theimplementation of the civil rights policy related to disabled people in the U. S. wasconfused 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 notionsof formal equality. All people are to be treated equally without regard to their individualdifferences; neutral standards are to be applied equally to all. The second approach,equality as equal access, is a modification of the equal treatment approach. Itincorporates the need to remove obvious barriers (obstacles) to access (such asarchitectural barriers) and then requires the application of the same neutral standards toeveryone. The third approach, equal outcomes, calls for removal ofartificial barriers and,if needed to equalize outcomes, then the application of unequal treatment todisadvantaged individuals of the target groups in question so as to equalize the outcomeof particular conditions between the target and non-target groups. For example, toequalize the income distribution as between the group disabled and the group not-yetdisabled, quota based affirmative action in employment may be required.Equal treatment was rejected very early but the choice of equal access or equal32. Stephen L. Percy, Disability. Civil Rights. and Public Policy: The Politics of Implementation. Thediscussion which follows is based on pp. 245-247 of this book.Equality and Non-Discrimination 49outcome has not been clearly made and policy implementation has been adversely affectedby on going argument about which option should be selected. In many cases a pointsomewhere between the two (idealized) paradigms has been chosen in designing specificimplementation policies. Cost has been used to determine the point along the equalaccess-equal outcome continuum at which the objective of equality was considered to havebeen taken far enough.In summary, Percy observes:Often, then, policy debates about strategies and objectives for implementation ofdisability rights revolve around differing perspectives about the appropriate equityapproach to be used in implementation. As would be expected, handicappedgroups generally push for interpretations that favour an equal outcome approach,while regulated clients, seeking to minimize regulatory impacts, prefer an equalaccess approach. Debates about which approach is most appropriate willcontinue into the future, because ofdifferences in the decision premises ofaffectedparties and ambiguities in both statutes and administrative regulations. Until suchtime as policymakers clarify basic issues about equity approaches, therebyelucidating the bounds of disability rights mandates, policy debates will continueand affected parties will continue to use the full range of institutional arenas toaffect the direction of implementation policies.33The principles upon which disability policy in Canada may be based can be foundin the Constitution and provincial human rights legislation. Section 15 of the Chartersets out the constitutional guarantee of equality. As the supreme law of Canada it maybe said to be the foundation upon which all public policy must be based.David Lepofsky suggests that this section imposes three obligations ongovernments.34First, when devising or implementing a government program or activity,disabled people may not be singled out for disadvantageous treatment - whether byimposing burdens on them not imposed on others or by restricting them from benefits or33. Ibid, p. 247. It is interesting to note that the Americans With DisabilitiesAct of1990 is premised ona full integration model but has controlled the scope of this principle by setting out clear cost and timelines to modify the declared policy. Canadian law and policy has not grappled openly with this issueyet, although decisions by many human rights commissions clearly indicate that expansive statementsof principle are severely constrained by cost concerns.34. M. David Lepofsky, EqualityRightsforHandicappedPersons in the Charter: Putting theAccent onIndividualAbiity, a paper prepared for the Cambridge Lecture Series, 1986, PP. 28 et seq..Equality and Non-Discrimination 50restricting their right to the opportunity to benefit from a program if an individualdisabled person wants to. It is to be noted that this principle does not preclude grantingbenefits 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 todo so because of the nature of the person’s disability, the administrators of the programmust reasonably accommodate the disability so the person can benefit notwithstandingthe disability. Included in this type ofaccommodation is the requirement that individualsbe assessed on their own merits and not be subject to irrebutable presumptions ofincapacity. Third, the government may not forget disabled people. This creates anobligation to provide the opportunity for disabled people to be heard and an obligationto take their interests into account when fonnulating policy.Equality is not only an elusive concept; it is also not the only value relevant todisabled and not-yet-disabled people. To consider only one example, while some disabledpeople may argue that a fully integrated city public transportation system is the onlyacceptable face ofequality, others may argue that there are significant advantages to thedoor to door service provided by segregated paratransit services. In the winter, in someparts of Canada, a fully integrated system would be useless without immediate snowremoval to allow the person to get to the bus stop. Some disabled people may considerthe cost of full integration an acceptable social expense while others may believe that theless money in the government’s hands the better for the country. While both sides of thisdispute may be arguing for equality, the precise manifestation of that equality may wellbe influenced by such considerations as the role of government and the level of taxationthat is appropriate.The concept of substantive equality, which I argue should be the basic principleupon which disability policy should be based and judged, does not of itself determine theface ofequality in the work-a-day world. Adopting the theory of substantive equality isonly the first step in determining how to describe equality for disabled people in practice.Equality and Non-Discrimination 51If substantive equality means only equal outcomes then segregated services may wellachieve equal outcomes, if the expected outcome of a bus ride is to get from point A topoint B then a segregated transportation system can achieve that result as well as a fullyintegrated one. Whether the outcome of taking a university class by video connectionwould 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 thecircumstances of each situation, the individuals involved, and one’s defmition of“substantive equality”. It may be reasonable to distinguish intermediate steps from theeventual 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 ofsubstantive equality.i. Separate but Equal:One option for implementing an equal outcome (substantive equality) policy is toconsider the end result and measure equality at that point. In this approach, the outcomeof transportation is to be moved from point A to point B. Special transportation servicescan be designed to achieve this objective. A balancing of inconveniences must beundertaken to measure the equivalency of the mode of transport. Door to door serviceoffers the advantage of not having to get oneself to and from the bus stop. Against thisadvantage, the disadvantage of uncertain pick up time must be balanced. The equality isseen 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 todisabled people are appropriate. An example of this is Noble House, a housing coEquality and Non-Discrimination 52operative in Vancouver. The residents ofthis 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 weresubject to a modified hospital ward environment. Special residences with electronicequipment designed to control TV, radio, doors, blinds, etc. were built and a full time staffof care givers is available. The residence, like a co-op housing project, is controlled andadministered by the residents. This housing service is a special program designed forcertain 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 disabledpeople by providing a special service even though it is designed to be separate from otherpeople and available only to disabled people.iii. Comparable Standards:A comparable standards approach, which may also be described as program orcomponent accessibility, does not assume a service is to be provided separately . Thisapproach considers whether a program, viewed as a whole, is accessible, not whether eachlocation where the program is delivered is accessible. In the United States, programaccessibility was equated with the idea of reasonable accommodation pending the timewhen full integration was possible. For example, if a B.A. program required a particularclass which was normally delivered in an inaccessible building and the cost of renovationwas judged too high, it would be sufficient to provide the required class somewhere elsefor the disabled student.The difference between this and the separate but equal approach is that theseparate but equal approach views equality only at the end point of the process while thecomparable standards approach considers each of the steps to the end point. It seeks tomaximize integration within the various steps but permits some different treatment if thetotality of the program can be seen to be comparable.Equality and Non-Discrimination 53iv. Full Integration:The full integration approach sees disabled people interacting side by side withnon-disabled people: in every circumstance disabled and non-disabled people areintegrated 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 paradigmproposes a public policy which maximizes a disabled individual’s opportunity to be reestablished in his/her community of origin. This paradigm, often referred to as“Independent Living”,35presupposes that disability is not primarily a medical conditionbut is a combination of a medical condition and the socio-economic status of disabledpeople. This model is based on the principles of:- demedicalization: It challenges the assumption that the management of adisability should be conferred on the medical profession once the acute care stageis complete. This acts to counteract the ‘sickness’ model which assumes thecondition is temporary and can and should be cured to make the person fit society.It emphasizes independence and self-sufficiency (personal control andresponsibility).- deinstitutionalization and normalization: It challenges the practice ofwarehousing disabled people and replaces that with consumer controlledcommunity based living arrangements for those who cannot live alone or needcontinuing support, and accessible housing and home care support for those whoneed 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 PhysicallyHandicapped, 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 tothe community and integrating them into a society which makes the minoraccommodations required to enable disabled people to take part in communityactivities. It accepts the dignity of risk and possibility of failure as basic humanrights.- consumerism: It sees the consumer who requires the support service assumeresponsibility for determining product (service) reliability, acceptability, anddesirability. It assumes the consumer (or his/her advocate) is best able todetermine his/her own needs.36Although written in the context ofdevelopmentally impaired people, the followingis an apt description of the integration model:Any new approach that successfully aims to include people with handicaps fullywithin society will also guarantee their basic right to maximize self-determinationand personal autonomy. It will make deliberate efforts to accommodate theirpersonal preferences and aspirations, and will put control in decision-making backinto their hands and into the hands of their family and friends. It will also makeprovisions ensuring that the individual and his or her personal network receive thesupports they need, so they can arrive at informed and prudent decisions abouthow to satisfy individual needs in a natural and cost-effective way in thecommunity. In order to achieve these goals, there needs to exist more flexiblestructures which will address needs on a person-by-person basis. These structureswill have to be accountable to individuals and their networks, and will regard theirneeds before those of the service systems.37Segregated services foster isolation, rejection, loneliness, oppression, exploitation,anxiety, and fear. Apart from the benefits for the individual disabled person, theintegration approach benefits the community which gains from the rich and diversecontribution of all individuals; conversely, the community is diminished if some of itsmembers are excluded. “Inclusion” (integration) is a value based approach designed to36. Marcia H. Rioux, IabeliedDisabled and Wanting to Work, Research Studies of the Commission onEquality in Employment at pp. 626-7. See also tenBroek, ibid, at p. 841: Public policy toward disabledpeople should be based on a policy of “integrationism”: the article discusses how tort law affects theability of disabled people to access transportation, public services, etc.37. Brian Salisbury, Jo Dickey, and Cameron Crawford, Service Brokerage: Individual Empowerment andSocial Service Accountability, p. 7.Equality and Non-Discrimination 55avoid devaluing people and continuing a permanent underclass in society.38C. Limitations to Equality Claims:A disabled person who relies on the use of a wheelchair may make a claim to aright, in the name of equality, to be able to use a municipal transportation system in thesame way as people who can walk onto the buses. This would require that all the busesbe wheelchair accessible. Other users ofwheelchairs may argue that they prefer a separateparatransit system. These users may be criticizing the first equality claim because theyhave a different view of what form equality should take. Other residents may agree withthe principle but argue that costs will be prohibitive. This criticism is based on the claimthat other equally valid interests outweigh the claim to equality. Still others may arguethat 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 limitationswhich may be placed on that right is another way of asking when equality rights may besubsumed to other rights and interests of individuals and society.Pursuing a claim to a right to equality under the Charter requires that the rightfirst be recognized. Then s. 1 provides a clear mechanism to limit that right.39Pursuing a claim to a right to equality under human rights legislation requiresagreement with the proposition that the denial of the alleged right amounts todiscrimination within the meaning of the legislation. There are three different ways tolimit the right depending on the particular wording of the legislation in question.4°First,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 56Second, most human rights acts contain general limitations referred to as bona fideoccupational requirements (or similar words) for employment or bona fidejustifications(or similar words) for services. Third, where a statute fails to provide a limitationmechanism the courts will read one in.41An equality claim may be defeated by some overriding right or interest if the twocannot co-exist together.Recognizing and acting on an equality right recognized by law or by social policyoften costs money. In other words, it requires changing resource allocations. Thenecessity of choosing how to distribute scarce resources leads to the making of tragicchoices.42 In the context of disability rights this means that some disabled people willhave 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 constantlyseeking a new equilibrium as demands are met, new ones are made, other social demandsput pressure on the resources dedicated, and the overall economic situation affects totalresource availability. Allocation decisions are reflected in decisions about the extent ofaccommodation which will be deemed reasonable and the categories of people orcategories of rights which will receive the protection of the law.43The natural tension between regulated clients and program beneficiaries is playedout as they both endeavour to affect the direction ofand responsibilitiesmandatedby implementation. Neither side is likely to stay satisfied for long with existingpolicies, and each new question - whether about including a new group under non-41. See, for example, OntthoHzinianRights CommissionandO’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 reasonableaccommodation subject to undue hardship to deal with an Ontario statute that contained an absoluteprohibition of discrimination because of religion.42. Guido Calabresi and Philip Bobbitt, Tragic Choices. The “tragic choice” is a choice which is made thatimplies a rejection of a proclaimed fundamental value of the society. The choice must be made becauseit deals with an essential requirement of society but it conflicts with basic values. Societies try to avoidmaking these choices by an allocation system which hides the essential tragedy. As the allocationsystem’s failings are socially acknowledged the response is to change the allocation system since thechoice still has to be made. The primary examples used are the resource decisions about kidneymachines and child bearing.43. Percy, supra, fn. 32, at p. 253.Equality and Non-Discrimination 57discrimination protection or requiring a new form of accommodation - willresurrect struggles between opposing groups.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 equilibriumwas maintained, we are currently in a period of rapid social change. Although it may beimpossible to achieve total equality, public policy should be directed toward striving forequality by the progressive reduction ofeconomic stratification and individual and groupdisadvantage.In the next chapter I will review the development of current official policyrespecting disability interests. Since there are gaps between policy and practice I willreview a theoretical model which purports to explain why there are always difficulties intrying to implement any policy change and give a brief overview of one example.44. Ibid p. 254.Official Policy 581V. OFFICIAL POLICY TOWARD DISABLED PEOPLE:Public policy related to disabled people has changed significantly during thiscentury. Beginning in the 1960s, the policy of deinstitutionalizing mentally ill peoplespread quickly across the country. Mentally and physically disabled children began to beintegrated into the public school system. By the rnid-1980s provincial and federalgovernments had adopted the integration model as the basis for their official policytowards disabled people. This policy shift occurred at different rates in the developmentofhealth, education, and human rights policies and in the various provinces but the shifthas been consistent and increasingly is reflected in programs and services for disabledpeople. The federal government’s announcement in 1991 of a National Strategy for theIntegration of Persons with Disabilities is the most recent manifestation of thisfundamental 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 thefoundation for govermnent policy respecting disabled people. The process started withthe deinstitutionalization of mentally ill patients. In the field of education the adoptionof the integration model began a process of placing mentally and physically disabledchildren in regular classrooms with the help of auxiliary aids and programs. Over a tenyear period human rights legislation was amended to prohibit discrimination because ofmental and physical disability. To the economic and medical/technological pressures forintegration was thus added the civil rights argument. In 1980 a special House ofCommons Committee held hearings across the country and, in 1981, published its report,Obstacles. The Committee noted the disadvantaged position ofdisabled people in societyand made many wide ranging recommendations for improvement. The CharterofRightsOfficial Policy 59andFrecdoms guaranteed equality without discrimination because of, interaiia, disability.With the announcement by the federal government of a National Strategy for thelntegration of People with Disabilities, integration has been adopted as officialgovernment policy for the formulation of programs directed to disabled people.After almost twenty years ofprogress towards integration disabled people are stillsignificantly disadvantaged by their segregation and isolation. After discussing somereasons why, despite change in public policy, progress towards integration and thereduction ofdisadvantage is so slow this chapter concludes with a briefreview ofdisabledpeople’s political action initiatives.i. The Policy of Deinstitutionalization:The decade of the 1970s was a time when large scale closing ofmental institutionsoccurred in Canada and the United Sates. One of the initiating factors for this movementwas the discovery and widespread use of tranquillizing drugs in the 1950s which allowedmore patients to return to the community on medication. The deinstitutionalizationmovement 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 stageinvolved transferring patients from large scale state mental health institutions to nearbygeneral hospitals. Soon after, further deinstitutionalization occurred with thedevelopment ofcommunity living approaches to therapy, half-way houses, and other aftercare 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 delayedpatients followed the change from custodial to therapeutic approaches to care and1. See generally P. Alimed and S. Plog, Introduction and an Overview ofthe Closing Scene, in Paul I.Ahmed and Stanley C. Plog (eds.), State Mental Hospitals: What Hanpens When They Close, p 1.Official Policy 60treatment, from therapies such as electro-shock and lobotomies to drugs and, later,behavioral modification. An example is the closing of the Saskatchewan Hospital inWeyburn in 1971, fifty years after its opening. Care and treatment of the residents wastransferred to comprehensive small community mental health centres.2 Initially, theprocess was not based on a concept of the rights of the patients or an ideology ofintegration into the community to promote and protect the human rights of patients. Itwas, rather, a combination of a reflection of society’s faith in mental health experts andthe mental health professions’ rise in power and influence. They were developing theoriesthat this approach was a better treatment regime and wanted it to be implemented.3Additional pressure was exerted by community groups ofinterested people or present andpast consumers of the services. As well, the widely touted savings ofcommunity care overthe expense of maintaining the often outdated facilities added the support of the publicofficials concerned with mounting expenses of government.4The policy change to deinstitutionalization of mentally ill and developmentallydelayed individuals was clearly and firmly entrenched by 1970-71 in Canada. At the sametime the increase in the number ofpsychiatric units in general hospitals and the provisionof family support programs so disabled children could receive their primary care fromtheir families supported the movement to replace the large institutions. However, theimplementation ofthe new policy was frequently inadequate. Closures happened withoutadequate notice to allow local authorities to plan alternate service delivery and lack ofdata to allow adequate planning and inter-departmental coordination contributed to casesof extreme hardship and failure to obtain care and treatment for many thousands of ex2. 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, inWalter B. Barton and Charlotte J. Sanborn (eds.) An Assessment of the Community Mental HealthMovement, p. 9.4. Greenblatt, supra, fn. 2, p.16. Paul R. Dingman, in TheAiternative CareIsNot There, in Ahmed andPlog, supra, fn. 1, p. 46, argues that cost was the primary reason the states began to close the largeinstitutions.Official Policy 61residents.5 There has been criticism of the policy of deinstitutionalization based onfactors ranging from the failure to prepare adequate alternative community support forthe individuals to concerns that the theoretical underpinning of the therapeutic value ofcommunity living has not been proven. Despite this, deinstitutionalization has beenadopted as the paradigm of choice and accepted politically without challenge. Thereremains very strong professional and grass roots support for the concept. In the last halfdozen years there has been strong, ongoing pressure for the acceptance of this revisedparadigm in which decentralized services are provided as part of an ideology ofintegration as a matter of human rights and also within the concept of a holistic, multiparty (composed of professionals, self-help groups, community support groups, andpoliticians) community ownership of the problem.6 And yet, even by 1987 the greatestshare of public money spent on the needs of mentally ill and developmentally delayedindividuals was taken by institutions, not community based alternative care facilities.7Deinstitutionalization has also fundamentally changed the special educationservices provided for disabled children (“exceptional children” in education jargon). Whileintegration into the regular school system is the objective, many different strategies arebeing used, including “deinstitutionalization, integration, non-categorical approaches toteaching, and a rejection of traditional labelling.”8 The objective of integrating disabledchildren into the regular school system (referred to as “mainstreaming”) is to providechildren with learning, behavioural, developmental, and physical disabilities with the5. 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 ofSanityinQuebec and Ontario, (1987) 1 Canadian Journal of Community Mental Health 27.7. Geoffrey Nelson, Special Issue: Community Mental Health Services for the Chronically MentallyDisabled, (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 alsoKofi Marfo & Wayne C. Nesbit, Egalitarian Versus Pedagogicai Concernsin Education: The Case ofIntegration in SpecialEducation, in Marg Csapo & Leonard Goguen (eds.), Special Education AcrossCanada: Issues and Concerns for the ‘90S, p. 179.Official Policy 62opportunity for “as normal an education as is consistent with their needs.”9 Thesechildren must be integrated into the physical as well as the intellectual, social, andemotional milieu of the local school.Mainstreaming may prove to be a more restrictive environment if exceptionalchildren are debased by their peers, socially isolated and poorly accepted.Socially, exceptional students in the regular schools must have the same access tothe various school programs and activities as other students; they must beprovided with equal opportunities for participation within the regularclassroom.Effective mainstreaming requires a re-allocation of special education services tomeet the widely varying needs of these children. Some will require substantial home orhospital based education while others may need only special support staff while in aregular 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 developsand progresses through life. “The ultimate goal is for students to move as far into theregular programs as possible, being integrated socially, emotionally, intellectually andphysically.”Mainstreaming is not, however, universally accepted by parents of disabledchildren oreducation professionals as the most suitable educational approach. Some feartheir child will not receive the personalized attention segregated special education classescan provide: others fear their child will be ridiculed and rejected by the other children ina regular classroom.’29. 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 largelyby 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 ofinstructionand learning.As one example, many deaf people are criticizing the mainstreaming of deaf children and theinsistence that they learn to lip read. Presentations to the Illinois Advisory Committee to the U.S.Official Policy 63Although the principle that all children have the right to equal educationalopportunities applies to all provincial school systems, the means to this end vary amongthe provinces. In some (eg: Ontario, Manitoba, and B.C.) legislation, and in others (eg:Nova Scotia, Prince Edward Island, Saskatchewan) department of education policyrequires that school boards provide education to all disabled children.’3The requirementthat school boards provide an appropriate education to all disabled children does notmean that such education must be provided in an integrated setting.’4 However, it doescompel “schools to move toward mainstreaming and individualized education programsfor the protection of each child with special needs.”5The degree to which mainstreaming is mandated varies among the provinces andamong local school boards, depending to a great extent on the perception of the localauthorities about the cost and available resources and differing attitudes towards theeffectiveness of integrated education for disabled children.In addition to legislative changes requiring integrated education, in many instancesparents have initiated litigation to force local school boards to allow their children toparticipate in the regular school system with appropriate supports. These cases typicallyuse a combination of education and human rights law and Charter arguments.’6Commission on Civil Rights (Rights of the Hearing Impaired) objected that this approach denied thedeaf child’s civil rights to an effective education. Many deaf people argue that sign language is thenative 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 preventsocial isolation. Studies presented to the Committee showed that despite the provisions of theRehabilitation 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-economicphenomenon which merely perpetuates a system which relegates poor, disadvantaged, and minoritygroup children to a permanently exploited under class. See David A. Leitch & S.S. Sodhi, TheRemediation Hoax, in Csapo & Goguen, supra, fn. 8, at p. 267.13. Winzer, supra, fn. 8, pp. 103-8.14. Leonard Goguen, Evolving Educational RiEhts ofExceptional 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 64The ideology of deinstitutionalization and integration was first implemented inpractice for mentally ill people and developmentally delayed children in schools. Thedriving forces influencing governments to adopt this new approach were the claims aboutthe cost-benefit to the public purse and the therapeutic benefits of integration. By themid-1970s physically disabled adults were also contributing to and benefiting from thisideology. These adults began to form consumer groups as self-help organizations tosupport their efforts to take control of their lives. Soon after, these consumer groupsbegan 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 physicallyhandicapped individuals were protected under the Code because the mere fact of havinga handicap could not be a reasonable cause to discriminate against a person inemployment.’8 This was the first time human rights legislation had protected disabledpeople. In 1976 New Brunswick was the first province to add “physical disability” to itshuman rights legislation as a prohibited ground of discrimination.’9 In 1977 Manitobaadded, and thejust passed Canadian Human RihtsActincluded, “physical handicap” asa prohibited ground ofdiscrimination.20Other provinces followed with Ontario, the lastprovince to do so, adding (mental and physical) “handicap” in 198 1.2k The report of the17. S.B.C. 1973 (2fld Sess.) c. 119.18. Jefferson v. B.C. Femes Services, (unreported, 1976).19. S.N.B. 1976 C. 31.20. S.M. 1977 c. 46; S.C. 1976-77 c. 33.21. Ontario Human Rights Code, 1981, S.O. 1981 c. 53.Official Policy 65House of Commons Special Committee on the Disabled and the Handicapped urgedthe extension of human rights legislation protection against discrimination by coveringphysical handicap in all sectors and by the addition ofmental disability in all sectors. TheCanadian Human Rights Act was amended in this fashion effective July 1983.23 Theprovinces which had not already included mental disability as a prohibited ground ofdiscrimination rapidly followed suit just before and after section 15 of the Charter ofRights and Freedoms came into force in April 1985.iii. The Obstacles Report:The Report ofthe House ofCommons Special Committee on the Disabled and theHandicapped (1981) proposed three principles upon which social policy related to disabledpeople should be based:• Participation: Disabled Canadians must have the same opportunity toparticipate 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 whichwill give disabled persons the same choice of participation that are enjoyed bythose who are not disabled (sic).• Self-Help: Disabled Canadians are often best able to help themselves throughtheir own service and advocacy organizations.24In the report the Committee makes recommendations designed to achieve thefollowing objectives:• Achievement of adequate income• Support for promotion of self-help efforts.• Provision of technical aids, and community support services such as attendant care andintervenor services.• Equal benefits and protection under the law.22. Obstacles, pp. 131.23. S.C. 1983 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 ofcommunity support services to reduce or eliminate the need for institutionalcare.• 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 toincrease the employment options of disabled people in the public service. The formalpolicy statement was approved in 1981! The policy permitted departments to purchasetechnical aides and directed departments to make extra efforts to hire disabled people andprovide career development opportunities for then currently employed disabled people.All departments were required to submit annual reports on their progress to TreasuryBoard. Regional offices of the Public Service Commission established special units toprovide individualized service to disabled people seeking employment and, in 1985, aspecial pooi of person years was established that departments could draw upon to hiredisabled people for a period of training and integration to the work place. In addition,the federal government initiated a pilot program ofaffirmative action in five departmentswhich included disabled people as one of the target groups. A separate pilot project forthe hiring of mentally disabled people was established in 1982. Affirmative actionincluding the disabled as a target group was made part of the application process for allfederal employment programs in 1982 when the various job creation programs were25. Ibid, p. 5.26. Surmounting Obstacles. Third Report, pp. 13-15.Official Policy 67combined into the Canada Jobs Strategy.These initiatives were designed by Treasury Board without the support orenthusiasm of line departments. Implementation was haphazard and depended on theinterest ofindividual line managers and personnel officers. While no doubt a few disabledpeople obtained jobs of longer or shorter duration, these initiatives represented only thefirst uncertain response to the newly emerging disability rights movement.v. Inclusion of Disability in Section 15 of the CharterSection 15 of the Proposed Resolution respecting the Constitution ofCanada,presented to Parliament on October 6, 1980, entitled Non-discrimination Rig-hts, providedfor “the right to equality before the law and to the equal protection of the law withoutdiscrimination because of race, national or ethnic origin, colour, religion, age or sex.”27The exclusion of disabled people was deliberate.28 This exclusion was severely criticizedacross the country. Calls for inclusion of disability as an enumerated ground were heardin the numerous public forums which discussed the proposals, the media, and letters andpetitions. At this time the Special Committee of the House of Commons on the Disabledand the Handicapped was holding its hearings across the country. The issue of theinclusion of disabled people in the Constitution was raised frequently. The Council ofCanadians with Disabilities, the Canadian Association for the Mentally Retarded, and theCanadian National Institute for the Blind, supported by a wide range of other publicinterest groups, made the argument for inclusion ofdisability directly to the Special Joint27. Anne F. Bayefsky, DefmingEqzialltyRightsin Anne F. Bayefsky and Mary Eberts (eds.) EqualityRights and the Canadian Charter of Rights and Freedoms, p. 1 at p. 10.28. M. David Lepofsky and Jerome E. Bickenback, EquthtyRibts and the PhysicallyHandicapped, inBayefsky and Eberts, ibid, p. 323 at p. 332.Official Policy 68Committee of the Senate and the House of Commons on the Constitution ofThere were a number of arguments presented to the Joint Committee in supportof including “disability” as a specified ground. The Obstacles report included therecommendation based on the evidence it had collected in its cross country hearings thatthere were significant examples of discrimination against disabled people, whetherintentional ornot, 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 disabledpeople were less important than for other groups. There were significant numbers ofdisabled people and so the addition would not just be for a few people. Canada hadinternational 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 DisabledPerson.°The government’s resistance to inclusion of disability in the list of grounds wasbased on three considerations. First, the term was too vague and would pose seriousproblems 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 thepopulation to be protected and the rights involved.”3’ Second, the question of cost wasraised. However, no evidence on this matter was presented. And, finally, the governmentargued that the statutory human rights scheme was a more appropriate forum to protectthe rights of disabled people, again without presenting evidence to support this view.32In response, witnesses to the Committee noted that the defmition problem was nogreater than for other terms which were included and, ifdesired, several defmitions which29. 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 groundunder 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 69had proven their worth could be used. Respecting costs, it was opined that this was nota real objection and, in any event, in many cases, costs would be reduced when disabledpeople were integrated into the conmiunity. In addition it was objected that tocircumscribe the rights ofdisabled people because of costs assumed that disabled peoplewere the lowest priority ofgovernments and subjected their rights to a cost/benefit analysiswhich applied to no other protected group. In response to the statutory human rightsschemes argument, it was noted thatmuch ofthe discrimination rose from legislation itselfand that these schemes could be altered at will by the various legislatures.33On January 12, 1981, the government proposed a number of changes to theresolution. Section 15 was amended to add “and the right to the equal protection andequal benefit of the law without discrimination” and the list of grounds of prohibiteddiscrimination was made open ended by the words “without discrimination, and inparticular, without discrimination based on. . .“the same list of seven grounds. TheMinister of Justice made it clear the issue ofdisability was considered but not adopted bythe government. The Minister noted that if discrimination was found to exist the openended list would permit the courts to intervene. On January 16, 1981 the Minister wasasked by the Joint Committee if, considering 1981 was the International Year of theDisabled Person, the government would reconsider its refusal to add disability to the listof grounds. On January 28, 1981 the Minister ofJustice agreed to the amendment35andthe provision was included in the February 13, 1981 draft of the proposed resolutionwhich was eventually enacted.3633. Ibid. pp. 339-40.34. Ibid. p. 334.35. Ibid, pp. 334-5.36. Bayefsky, szipra, fn. 27, P. 10.Official Policy 70vi. The Employment Equity ActIn 1983 the Royal Commission on Equality in Employment was established toreview the employment position of women, aboriginal peoples, disabled people, andvisible minorities. In her report Commissioner Judge Rosalie Abella proposed that “anewterm, ‘employment equity’, be adopted to describe programs of positive remedy fordiscrimination in the Canadian workplace.”37 This term was intended to avoid thenegative emotional context of the American term ‘affirmative action’. Judge Abella said:“No great principle is sacrificed in exchanging phrases of disputed defmition for newerones that may be more accurate and less destructive of reasoned debate. 38The 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 personshall be denied employment opportunities or benefits for reasons unrelated toability and, in the fulfilment of that goal, to correct the conditions ofdisadvantagein employment experienced by women, aboriginal peoples, persons withdisabilities and persons who are, because of their race or colour, in a visibleminority in Canada by giving effect to the principle that employment equity meansmore than treating persons in the same way but also requires special measures andthe accommodation of differences.The Act applies to federally regulated private and Crown Corporation employersemploying 100 or more persons but not to any employer undertaking work of a local orprivate nature in the Yukon Territory or the Northwest Territories or the government.Designated groups are described in section 3 as “women, aboriginal peoples, persons withdisabilities and persons who are, because of their race or colour, in a visible minority inCanada.” Section 4 requires an employer37. 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 bothgovernment and private employers and British Columbia enacted the Pub]icServiceActwhich permitsthe implementation of employment equity in the public service.Official Policy 71in consultation with such persons as have been designated by the employees to actas their representatives or, where a bargaining agent represents the employees, inconsultation with the bargaining agentto implement employment equity, by identifying and eliminating barriers to employment,and instituting “positive policies and practices” to ensure that persons in the designatedgroups will achieve a representation proportional to their representation in the labourforce. The regulations defme “consultation” to mean “that the employer must supplysufficient information and sufficient opportunity to employee representatives orbargaining agents to enable them to ask questions and submit advice on theimplementation of Employment Equity”. Employers are required to prepare an annual“action” plan, including goals and timetables. Starting in June 1988, and annuallythereafter, employers are required to submit to the Canada Employment and ImmigrationCommission (CEIC), which will forward a copy to the Canadian Human RightsCommission (CHRC), reports about hiring, promotions, and terminations according toindustrial sector, geographic location, and employment status by occupational group andsalary range for designated and non-designated group employees. Failure to do so is asummary conviction offence and may result in a fine not exceeding $50,000. Copies ofthese 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 andon the side of employers for neglecting to consult.There are no penalties for failure to fulfil the requirements of the EmploymentEquity Act, except for failure to prepare and forward a workforce census. Initially thegovernment believed that negative publicity arising from reports which showed under-representation would be sufficient incentive for employers to voluntarily take correctiveaction. This provoked vigorous criticism. The CHRC declared its willingness to take onthe role of an enforcement agency by using its authority to initiate complaints based onthe data collected through the workforce censuses. The government amended the bill toOfficial Policy 72provide for the transfer of census reports to the Commission.Each year the CHRC reviews all the reports and, based on rather impreciseselection criteria, invites a number ofemployers to enter into a “voluntary review” of theiremployment systems. In co-operation with the employer, the Commission reviews theworkforce data, employment systems analysis, and employment equity plan. Anagreement to end the joint review is achieved when the Commission is satisfied that theplan will be effective to correct underrepresentation in the workforce. Individuals mayalso file complaints based on the data. In such cases an investigation is conducted by theCommission. The process of investigation is essentially the same as that of a voluntaryreview.40Although the federal government is not subject to the Employment EqultyAct, ithas directed departments to produce statistical reports and prepare plans as required bythe Act.4’ The policy does not require consultation with public service unions.vii. The Federal Contractors Program:The Federal Contractors Program was established in October 1986 by Cabinetorder. 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 implementemployment equity if they are successful. Failure to comply with employment equitymeasures can lead to loss of the opportunity to compete for future contracts. Companies40. OperationaiProc.eduresforEnsunngCompliance with Employment Equity, Canadian Human RightsCommission. 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 beenundertaken (representing 65.5% of all employees covered by the legislation). Since the government isnot covered by the Act, these reviews and complaints are based on the Commission’s general powerto investigate complaints ofsystemicdiscrimination. Eleven reviews andthirteen complaints have beencompleted.41. Employment Equity Policy, Personnel Management Manual, V. 4 c. 15, May 1988. Amendments tothe PublicServiceEmploymentAct(S.C. 1992, c. 54, s. 5) provided specific statutory authority for thispolicy.Official Policy 73bidding on contracts must certify their commitment to employment equity implementationwhen they submit the bid. Upon award ofthe contract, the company must implement thesame type of employment equity plan as required by the Employment Equity Act andauthorize CEIC officers to review the implementation of the program. CEIC officialsbased in Ottawa will assess compliance and measure performance levels. If the reviewresults are negative the contractor has 12 months to correct the identified deficiencies.Companies dissatisfied with the CEIC audit may appeal to the Minister of Employmentand Immigration. Failure to comply with CEIC directions to rectify deficiencies may leadto sanctions, including eventual exclusion from bidding on future contracts.Despite the close relationship to the other requirements ofthe EmploymentEqwtyAct, 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 beenresponding to the equality expectations of disabled people by adjusting policies,developing technologies, or opening educational, employment, and recreationalopportunities. The process of implementing the recommendations of the 1981 Obstaclesreport progressed slowly throughout the 1980s. But there was no concept of a nationalpolicy to coordinate the activities of the various levels of government and the privatesector 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 variousmodes of transportation, access to and from airports and access within airports, and hasbeen funding and coordinating research on bus loading devices, model accessibilityprojects, and the development of public communications systems to allow disabledOfficial Policy 74travellers the same service system as non-disabled people.42 Technological advances intelephone communication devices are continually being made and telephone companiesgenerally allow discounts for, or free use of the equipment by, disabled people. Relayservices for deaf consumers exist in most companies, although the restrictions andlimitations ofthe service do not allow equal access to the service available to non-disabledconsumers. However, equipment for deaf and hard of hearing, vision impaired, andmovement impaired consumers is available and being improved. BC Transit, theVancouver public transit system composed of bus, skytrain, and seabus services, issignificantly integrated and working to complete the process. It also runs a special servicefor 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 zerobetween 1981 and 1991 and the number of accessible inter-city buses in Ontario remainedat zero in the same time frame.43 Maclean Hunter Cable TV began a Closed CaptionDecoder Program in May 1991 in all its Ontario systems, and Rogers Cablesystem inOttawa did the same with plans to expand the services of all its customers in BritishColumbia, Ontario, and Alberta by the spring of 1992 (about 95% ofprime time U.S. andCanadian television is captioned), but Metro Toronto taxi services have not taken44advantage of provincial funding to ensure an accessible taxi service. In 1989 theManitoba government issued a policy on accessibility to public meetings and hearings,government services, publications.45On September 6, 1991, in Winnipeg, the Prime Minister announced the federalgovernment’s “National Strategy for the Integration ofPersons with Disabilities”.46 The42. “Mobility Plus: A transportation newsletter for the disabled community”, Transport Canada, V. I1988.43. 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 75Prime Minister said “Persons with disabilities neither ask for special sympathy nor expectspecial privilege; all they ask for is equal access.” This National Strategy is based on threegoals: “equal access, economic integration, and effective participation [to] bring peoplewith disabilities into the social and economic mainstream of Canadian life.” TheDepartment ofthe Secretary of State has a lead role to coordinate the work often federalgovernment departments: The Department ofthe Secretary of State, Canadian Mortgageand Housing Corporation, Department of Communications and National Library ofCanada, Employment and Immigration Canada, Health and Welfare Canada, Fitness andAmateur Sport, Indian and Northern Affairs Canada, Department of Justice, LabourCanada, Transport Canada, National Transportation Agency, and Treasury BoardSecretariat.47 The Strategy encompasses issues related to access to employment, training,housing, communications, transportation, public sensitivity, andcommunity integration.“The government strategy recognizes that barriers to the full participation ofpersons withdisabilities are complex and interrelated”.48A flurry of activity to introduce this program followed the Prime Minister’sannouncement. Fitness and Amateur Sport announced a program, “Active Living forCanadians with a Disability: A Blueprint for Action”, “to facilitate the inclusion ofstudents with disabilities in appropriate physical educationlactivity opportunities” .‘ TheDepartment of Communications established the “Advisory Committee onCommunications for Persons with Disabilities” to advise the Minister on“communications related actions needed to facilitate the integration of persons withdisabilities. Labour Canada established the “Workers with Disabilities Fund”47. Many of the names of these departments changed as a result of a government reorganization near theend 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 76which includes “consultations . .. to identify possible barriers in the legislation andregulations [of the Canada Labour Code], and improve access to employment for peoplewith disabilities.”5’During the same time span, the other departments also announceddepartment specific program initiatives directed toward the integration of disabled people.B. The Slowness of Change:i. Is the Change Slow?The House ofCommons Committee on the Disabled and the Handicapped statedin its 1981 report:In comparison with the efforts being made in other countries, Canada shows poorprogress in assisting disabled persons in the areas of employment opportunities,income security, community support services, and technical aids. The Memberscan find little reason for this situation other than lack of direction andcoordination on the part of government, institutional, and community leaderswho have the power to make changes. There are no insurmountable obstacles toprevent Canada from taking a world leadership role in providing disabled personswith the practical means for greater independence.52The Canadian Human Rights Commission has undertaken a number of surveysto determine the effectiveness of current access law and policy.The first survey dealt with physical access to federal government departments.53The survey wasbased on compliance with the Canadian Standards Association CSA B56 1“Barrier-Free Design Standard”. With a score of 100 representing full compliance withthe Standard the offices ranged from a low of 24.62 (for the hard ofhearing in the Healthand Welfare office in Halifax) to a high of 92.06 (for the blind in the Health and Welfare51. 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 FederalOffices. The Survey covered the Employment and Immigration Commission, the Canadian HumanRights Commission, Health and Welfare Canada, Revenue Canada - Taxation, and the Public ServiceCommission in Halifax, Montreal, Ottawa, Toronto, Winnipeg, Edmonton, and Vancouver.Official Policy 77office in Vancouver). The average rating for all disabilities and all offices was 62.94. TheCEIC 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. TheCHRC average ofall 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. TheHWC average ofall 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 alldisabilities 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 averageof 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 governmentbuildings to be fully accessible. The government’s response was that new buildings wouldmeet barrier free access standards and that standards were being developed for existingbuildings. Treasury Board has had a policy of requiring access to its services since 1982and there have been barrier-free design standards on accessibility within government since1985. Compliance with accessibility standards varied with type of disability: (average ofall 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 ofgovernment publications in alternative format.55 For the 552,585 adult Canadians whoare visually impaired lack of access to the information available to other Canadians inprint format is a serious barrier to their full participation in society. Alternate formatsrefer to information in large print, audio cassettes, braille and alternative output devices54. Since 1981 the federal government has had “a mandatory provision” that all CEIC leased premises byaccessible 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 GovernmentPublications in Alternate Fonnat.Official Policy 78(computers). The survey covered 48 departments and agencies. It may be noted that the1981 Obstacles report recommended that a national communications policy be developedto ensure equal access to information and that in the 1983 government response56 it wasreported that Treasury Board had directed all federal departments and agencies to setaside up to 1% of their total publicity budget to produce and distribute materials inalternate formats. CurrentTreasury Board policy requires departments to makematerialsavailable in alternate formats within the same general time frames as for printed materials.Nearly 60% ofthe departments surveyed had no publications in alternate formats. Theseincluded CMHC, CBC, Consumer and Corporate Affairs, Elections Canada, Fitness andAmateur Sport, Information Canada, Justice, Occupational Health and Safety, RevenueCanada - Customs, the Status of Women, and the Transportation Safety Board. TheCHRC, CEIC, Health and Welfare, labour, NTA, PSC, and revenue Canada - Taxationhad 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 whatlittle information is available is not known by the consumers to be available and so theydo not ask for it. This low level of demand reduces the interest in the departments inproducing the materials. This endless cycle has to be broken by the departments whichhave the responsibility to service the public.57The third report of the series “Unequal Access” dealt with the availability of56. Supra, fn. 26.57. See, for example, Manitoba’s Guidelines on Access to Government: PubiicationsPublicMeetingsandHearings Services, 1989. Information is to be provided in alternate formats but preparation dependson expected demand. Information thought to be of interest to disabled persons should be preparedin alternate format at time of general production. Other information may be made accessible inamount and format by agreement with the person requesting the information. Once material has beenproduced 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; specificarrangements for the deaf and hearing impaired may be provided upon request only. Governmentservices, such as family dispute counselling, medical, training courses, are to be provided to deaf andhearing impaired citizens.Official Policy 79Telephone Devices for the Deaf (TDD) by Federal government departments.58 InAugust 1986 the Secretary of the Treasury Board wrote to all Deputy heads ofdepartments and agencies to “ask them to ensure that: ... the hearing impaired areafforded full telecommunications access at each major source of public information nowavailable to the non-disabled.”59 In June 1987 the Telecommunications Group of theDepartment of Communications asked for public input on how to improve access totelephone received advice and information for deaf and hard of hearing people. Arandom check oflisted federal TDD numbers by the Canadian Coordinating Council onDeafness in 1988 found 85% of TDD calls could not be completed. The CHRC studyinvolved 55 offices representing 31 federal departments and agencies. 31% responded onthe 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 beforeresponding. CRTC, CEIC, labour Canada, and the RCMP all replied on the first call.Agriculture Canada, CSIS, Department of Justice, National Defence, Transport, andVeterans Affairs never responded. Some regional offices never answered and othersanswered after 1 or 2 calls in Health and Welfare, the PSC, Revenue, and StatisticsCanada. Of the nineteen TDDs that were not answered the departments provided thefollowing explanations: 6 because the telephone book listing was incorrect, 5 because theTDDs were being repaired, 5 thought their machines were working and said they wouldcheck, and 3 departments insisted their machines worked and would be answered despitethe survey not getting through after 6 tries.The fourth report of the series “Unequal Access” dealt with banks60. A snap shotsample of7 branches (one in Halifax, Montreal, Ottawa, Toronto, Winnipeg, Edmonton,58. Canadian Human Rights Commission, Unequal Access Survey Report 3: Availability of TDDServices by Federal Departments.59. Ibid,p.3.60. Canadian Human Rights Commission, Unequal Access: An Accessibility Survey of Selected Banks.Official Policy 80and Vancouver) of six major Canadian banks was done. The average accessibility indexfor 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 bydisability ranged from a low of 12.09 for access by wheelchair users in an Ottawa Bankof Montreal to 96.05 for access by deaf people in a Vancouver Bank of Montreal. Theaverage 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. Theaverage accessibility index of all banks by all disabilities in these structures was; Mainbranch - 72.80; major shopping centre - 77.44%; strip shopping centre- 77.59; freestanding suburban - 75.28%; older freehold - 74.04.The fifth report of the series “Unequal Access” dealt with Canada Post outlets61.The Commission used the Canadian Standards Association standard for these surveys.Many ofthe postal outlets met the provincial building code requirements but not the CSAstandard. The survey of 2 outlets in seven cities gives a snap shot view: it is not suitablefor 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 forall 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. Theresults by disability ranged from a low of 50 for deaf people in Montreal and Edmontonretail outlets to 100% for blind people in the Vancouver retail outlet. The average bydisability for all outlets was deaf- 70.71; hard ofhearing -78.00; blind -81.38; low vision -79.32; mobility wheelchair -79.84; mobility non-wheelchair- 80.85. Canada Post servicesare offered through three types of outlet: corporate - facilities operated by Canada Post,franchise- operated as small businesses, and retail outlets operated on acommission basis.61. Canadian Human Rights Commission, Unequal Access: An Accessibility Survey of Canada PostOutlets.Official Policy 81The 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 notmeet national accessibility standards. Banks, subject to the accessibility provisions oftheCanadian Human Rights Act since 1983, were generally on par with governmentdepartments. Anyone who observes their daily activities with a view to accessibilityconcerns will see that human rights legislation and govermnent policy have not createdan integrated or accessible society.ii. Why is Change So Slow?Ten years elapsed from the date of the Obstacles report before a national policywas articulated by the federal government. Why has progress been so slow?Implementation of the integration model is a major change in the way societyinteracts with disabled people. This is inevitably a slow process. A multi-disciplinary andmulti-policy approach is required. The stick of human rights complaints, Charterchallenges, withholding of funding, etc. needs to be combined with the carrot of taxbenefits, public funding, and the presence of disabled people interacting with non-disabledpeople in daily life. Despite the inevitability ofslow progress, it is exacerbated by the lackof public policy direction, the continuing influence of negative attitudes about disabledpeople, and institutional inertia.The implementation ofpolicy decisions does not occur automatically. Even afterthe relevant governing authorities have decided to implement a new or modified policy,pockets of resistance and ignorance remain. One aspect of policy implementation is theeducation of those who are unaware of the policy and its implication. Another is theeffort to overcome the resistance of those who do not want to have the policyimplemented. Stephen Percy, in his book dealing with the implementation of the policyOfficial Policy 82shift reflected in section 504 of the U.S. Rehabilitation Act, J97/2 notes that little workhas been done on developing a comprehensive analytical framework for the study of theprocesses by which policy directions are operationalized.63He attempts to fill this lacunaby proposing an organizing framework “that is based upon the notion of institutionalanalysis, namely that implementation policies are set and reset as relevant actors interactwithin institutional arenas so as to protect their positions.”t The implementation ofpublic policy, expressed as legislation or otherwise, involves considerations ofthe politicaland administrative processes of policy refinement (what does it really mean?), policydiffusion (informing the relevant parties about the policy), and policy execution (dailyadministration).Before public policy changes can occur the issue must appear on the action agenda.Policy implementation is not a linear process: instead, the issues frequently bounce aroundvarious institutional arenas. The people involved in policy implementation act to furthertheir own interests. A greatmelange ofbroad based environmental trends, long and shortterm interests of the actors, and the relative power of the various arenas themselves allcombine to explain the dynamic process involved in the implementation ofany particular65policy.The environment in which public policy options are supported, rejected, or ignoredchanges. The political environment may change by the result of a single election: adifferent political party may bring a change in the basic ideology of government. The62. Stephen L. Percy, Disability. Civil Rights. and Public Policy: The Politics of Implementation. Thediscussion which follows is based on this book.63. See also Eugene Bardach, The Implementation Game: What Happens After a Bill Becomes a Law, p.37 where he also notes the lack of theoretical work on this subject. This study is based on theimplementation of the Lanterinan-Petris-Short Act, 1967, which was in essence a program todeinstitutionalize the provision of mental health services in California.64. Supra, fn. 61, p. xi.65. See also Bardach, supra, fn. 63, p. 9, where he describes the implementation process “as a process ofstrategic interaction among numerous special interests all pursuing their own goals, which might ormight not be compatible with the goals of the policy mandate.”Official Policy 83practical actions of a government will be affected by the ideological basis of the party.However, whatever the ideology of the governing party, a government is influenced alsoby the economic environment within which it must function. A conservative governmentwhich has no money will pursue different policies than a social democratic governmentwith no money. As well, these two governments will pursue different policies if they havemoney. Public attitudes and expectations change over time and reflect the generaleconomic health ofa country, its changing demographics, and a host ofother factors. Allof these environmental factors impact on the selection of policy options.The people involved in policy development include the legislators and their staffand advisors, the beneficiaries of the policy (eg. the consumers of services for disabledpeople), those who work in the regulated sector, and the bureaucrats who must implementthe policy which is chosen. Not all actors are equal. Some actors operate in arenas whichhave more power. Some actors are essentially bit players who arrive on the scene to voteat the right time. Some are strongly motivated by a desire to obtain the benefit of aproposed policy or by a desire to avoid the consequences of the policy. In addition, thepower to influence is affected by the fonnal and infonnal lines of communications anactor maintains with other actors. Percy refers to these links as “issues networks”.The institutional arenas in which policy options are debated include legislaturesand local government councils, cabinets, legislative committees (including budget,coordination, and specific subject matter committees), the courts, line departments andadministrative agencies, and local constituency offices. In addition to those public arenas,corporate boardrooms, community group boardrooms, and large public conferences areimportant arenas where positions are developed to argue for or against public policyinitiatives.In summary, Percy argues that the implementation of public policy is a dynamicprocess involving many institutional arenas and institutional actors.The study ofthe implementation ofany public policy initiative may be consideredOfficial Policy 84from four interrelated perspectives: 1) implementation as political process, 2)implementation as administrative process, 3) implementation as intergovernmentalrelations, and 4) implementation as a game between rational actors.Implementation as Political Process: Implementation of public policy involvesongoing political struggles to influence the direction of policy implementation and theallocation of resources. Interest groups continue to lobby for their interests afterlegislation is passed - either to effectively expand the effect of the policy or confine itsscope by influencing the implementing regulations, policy directives, and fundingprograms. At each political decision level the scope ofdiscretion allows political input toexpand or reduce the effect of the policy. In essence, the same politics continue indifferent forums. These may include pressures on the administrative agencies to give abroad or narrow interpretation to their mandate, arguments made to the courts, andarguments raised in response to publication and calls for comments on proposedregulations. Whenever there is a discretionary power there is room for political pressureto exercise that discretion in preferred ways.66Implementation as Administrative Process: This approach attempts to explainimplementation in terms of traditional questions of administration, includingtensions between centralization and decentralization, the structure of authorityrelationships, problems of communication and information flow, and thedivergent expectations, skills, interests, and commitments of administrativepersonnel.67One important set ofadministrative variables, considered in some fashion in most66. Bardach, ibid, agrees with the notion of implementation as political process, but observes that:It is a form of politics in which the very existence of an already defined policy mandate, legally andlegitimately authorized in some prior political process, affects the strategy and tactics of thestruggle. The dominant effect is to make the politics of the implementation process highlydefensive. A great deal of energy goes into manoeuvring to avoid responsibility, scrutiny, andblame. (p. 37)Unlike the political process to achieve the adoption of the policy, which seeks to form coalitions ofinterest groups, the politics of implementation are characterized by coalition breakdown as each parttries to defend its particular interests. “All might approve of the new program in principle, but allwould want to alter the terms of its implementationjust slightly to assuage their own particular fears.”(p. 42)67. Supra, fn. 62, p. 14.Official Policy 85implementation studies, concerns the qualities of public officials, in particular,their skills, interest, commitment, and experiences. It is evident from empiricalwork that lack of commitment to policy objectives can impeded effectiveimplementation efforts, as can insufficient technical and political skills...The importance of staff to implementation suggests that administrative processesof personnel recruitment, task assignment, and evaluation have many potentiallyimportant linkages to the outcome of implementation programs.68Although the internal processes of a bureaucracy have a significant impact onpolicy implementation, Bardach observes that this approach, in his terms “implementationas an administrative control process”, is limited because implementation involves manymore actors than the bureaucrats.Implementation as Intergovernmental Relations: Implementation ofnation widepolicies requires continuous interaction among federal, provincial, and local governments.Jurisdiction conflicts involve ongoing questions about which level of government has topay what share and which level has the authority to decide the effective direction of thebenefit program. Delegation of power from a higher level of government may occurthrough a direct delegation of power or indirectly through controls on funding. Energywhich should go to implementing the policy frequently goes to arguing about levels ofauthority, monitoring powers, and accountability. These problems are exacerbated whenthe end result of a policy direction is not clear and obvious.Implementation as a Game between Rational Actors: Every policy has to beimplemented by many hundreds of government and industry officials. This perspectivelooks at the players, what they see as important, what they want, how they interact, andhow they manipulate the process to get what they want. These actors are seen as rational,in the sense that they act to achieve a personal objective they fmd satisfying. Theseobjectives may involve achieving influence, power, satisfaction in a job well done,implementation of their values, or the joy of the battle, to mention but a few possibilities.68. Ibid, pp. 14-5.69. Supra, fn. 63, p. 46.Official Policy 86Achieving the psychological objective is manifested by achieving the outcome they areseeking.While it may be true that playing a “game” may be rational in the sense that theactor is pursuing an objective he/she wants to achieve, these games frequently aredestructive to the process of implementing the objectives ofthe policy. Bardach describesthese destructive effects in general terms as:(1) the diversion of resources, especially money, which ought properly to be usedto obtain, or to create, certain program elements, (2) the deflection ofpolicy goalsstipulated in the original mandate, (3) resistance to explicit, and usuallyinstitutionalized, efforts to control behaviour administratively, and (4) thedissipation ofpersonal and political energies in game-playing that might otherwisebe channelled into constructive programmatic action.7°The outcome of any argiment can be different in different arenas because eacharena has its own rules. Thus, individuals have an incentive to try the same arguments indifferent arenas. This has the benefit ofreducing frustration levels for the losers since theyhave an outlet that might reasonably accede to their argument but the disadvantage thatit also encourages endless repetition and slows down the progress ofimplementing the newpolicy.Bardach observes that even if a policy direction is adopted it may still not bepossible to implement it as designed or to implement it in a way which achieves itsobjective. He notes that even when the design of the policy takes account of thevicissitudes of implementation the process is “inherently unpredictable”. His studydemonstrated the ongoing process of implementation:Even the most robust policy, one that is well designed to survive theimplementation process, will tend to go awry. The classic symptoms ofunderperformance, delay, and escalating costs are bound to appear. As they do,someone or some group must be willing and able to set the policy back oncourse.1These theoretical constructs can usefully inform study of the implementation of70. Ibid, p. 66.71. Ibid,p.5.Official Policy 87disability policy in Canada. The federal government has less direct authority to influenceprovincially regulated matters than in the U.S. Legislated federal-provincial fundingagreements require inter-government agreement on policy directions and rates ofimplementation. The federal government also can impose criteria on projects it fundsdirectly even if legislative authority rests with provincial governments. However, theconstitutional debate puts constraints on any government, but particularly the federalgovernment, appearing to assert jurisdiction in new areas. Finally, the variousgovernments are influenced to different degrees by the different political philosophies ofthe various interest groups which pressure governments to pursue their interests. Thismeans that the various governments often disagree on how to implement policies thatsuperficially appear identical. The administrative process and nature of the actors aresimilar in both countries.As an example, to better reflect on the accuracy of these theoretical constructs, Iwill very briefly describe what happened when Parliament adopted a policy decision topromote accessibility rights by the use of voluntary adaptation plans.By mid-1982 the Canadian Human Rights Commission was aware thatamendments to the Canadian Human RihtsAct to introduce the concept ofadaptationplanning would be enacted. This concept permitted covered entities to devise and submitplans for adapting their facilities to make them fully accessible to disabled people. Oncea plan was approved by the Commission no complaint could be filed in relation to anymatter covered by the plan. These amendments came into effect July 1983.7272. S. 17. (1) A person who proposes to implement a plan for adapting any services, facilities, premises,equipment or operations to meet the needs of persons arising from a disability may apply to theCanadian Human Rights Commission for approval of the plan.(2) The Commission may, by written notice to a person making an application pursuant to subsection(1), approve the plan if the Commission is satisfied that the plan is appropriate for meeting the needsof persons arising from a disability.(3) Where any services, facilities, premises, equipment or operations are adapted in accordance witha plan approved under subsection (2), matters for which the plan provides do not constitute any basisfor a complaint under Part HI regarding discrimination based on any disability in respect ofwhich theplan was approved.(4) When the Commission decides not to grant an application made pursuant to subsection (1), it shallsend a written notice of its decision to the applicant setting out the reasons for its decision.Official Policy 88Between November 1982 and October 1984 a consultant was engaged to advisethe Commission on how to implement adaptation planning and a series of consultationmeetings were held with representatives of various interested parties.In mid-1983 the consultant recommended the Commission proceed on the basisthat respondents would want to submit voluntary plans and that the Commission itselfwould advocate the benefits ofsuch plans, provide expert advice to respondents, and havethe technical capacity to minutely critique submitted plans. The underlying theory wasthat the adaptation planning concept would be a positive way to systematically achievefull accessibility.As the consultation meetings continued, the Commission formed the opinion thatthe respondent and disabled communities wanted the Commission to perform the role ofexpert on accessibility and barrier free design and avoid assuming that responsibilitythemselves. Even at that time concerns were being raised about the resources thisapproach would require and that the Commission could not meet. A combination ofphilosophical, legal, resource, and practical concerns, as well as the recognition thatnumerous private and public entities were becoming expert on the subject, lead theConmiission to seek an alternative approach.Eighteen months later the Commission sought further advice. In June 1985 itS. 18. (1) If the Canadian Human Rights Commission is satisfied that, by reason of any change incircumstances, a plan approved under subsection 17(2) has ceased to be appropriate for meeting theneeds of persons arising from a disability, the Commission may, by written notice to the person whoproposes to carry out or maintains the adaptation contemplated by the plan or any part thereof,rescind its approval of the plan to the extent required by the change in circumstances.(2) To the extent to which approval of a plan is rescinded under subsection (1), subsection 17(3) doesnot apply to the plan if the discriminatory practice to which the complaint relates is subsequent to therescission of the approval.(3) Where the Commission rescinds approval of a plan pursuant to subsection (1), it shall include inthe notice referred to therein a statement of its reasons therefor.S. 19. (1) Before making its decision on an application or rescinding approval of a plan pursuant tosection 17 or 18, the Canadian Human Rights Commission shall afford each person directly concernedwith the matter an opportunity to make representations with respect thereto.(2) For the purposes of sections 17 and 18, a plan shall not, by reason only that it does not conformto any standards prescribed pursuant to section 24, be deemed to be inappropriate for meeting theneeds of persons arising from disability. S.C. 1980-81-83-83, c. 143, s. 9: Now R.S.C. 1985, c. H-6.Official Policy 89embraced a new conception of adaptation planning. This approach saw adaptationplanning as an undesirable exception to the basic principle of non-discriminationpromulgated by the Act. As a consequence, voluntary adoption of such plans would notbe vigorously advocated, the responsibility to obtain technical expertise would rest withthe applicant, and the Commission would assess submitted plans only against broad basedhuman rights principles. It would be up to the applicant to prove that the high thresholdstandards for approval had been met.It is to be noted that even then there was not a full consensus among the variousbranches of the Commission on the proper approach or the exact legal duties of theCommission in relation to adaptation planning.In the meantime, many other government and private agencies were involved inwork on access rights. For example, Transport Canada was a major initiator of effortsto deal with issues related to the transportation of disabled people and had numerousconsultative committees working. With the passage of the amendments that departmentacted on the basis that the adaptation planning concept was to be an integral part of thisprocess. One important committee was the Council ofTransport Ministers Responsiblefor Transportation and Highway Safet
UBC Theses and Dissertations
Accessibility rights for disabled people Hosking, David Leigh 1994
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