How disabled won place in Charter
by David Lepofsky

April 17, 2002

THE 20TH ANNIVERSARY of the Charter of Rights, April 17, 2002, has special meaning for me. I was privileged to play a small part in the battle to get equality for persons with disabilities added to the Charter, the only right explicitly added to it in the parliamentary debates.

When the Charter debate began, I was finishing my law studies, cramming for bar exams. Two years before, I had lost my minimal, dwindling eyesight.

The 1980 draft Charter originally included equality rights but deliberately omitted persons with disabilities. Many voices contributed to our victory in getting the Charter amended to include disability equality. Mine was but one of them. We did not expect to win. But we had to try.

Then-prime minister Pierre Trudeau, to whom we remain indebted, was pushing the Charter so hard that I never thought he would stop to listen to us. The media paid us scant attention. They were preoccupied with Trudeau's battle against those premiers opposing the Charter.

Meanwhile, Parliament was considering the Charter at warp speed.

Disability activists were inexperienced at national lobbying. We had no faxes for instant communication, for example. I, along with Ontario's disability organizations, was preoccupied with lobbying the provincial Conservative government to include disability in Ontario's Human Rights Code. There was no time to co-ordinate a national strategy.

Individuals and organizations had to do what they could on their own.

When I heard that the Charter excluded disability, I asked the Canadian Institute for the Blind to appoint me as its "constitutional spokesman," whatever that was. The CNIB agreed. I immediately launched our campaign to the media. But the media ignored us. Ironically, one TV station complained that there was nothing "visual" in our story.

I sent a brief to Parliament, but never dreamed CNIB would be invited to testify. Hearings were on tight time lines and many groups wanted to make presentations. Then came an unexpected phone call. Parliament invited CNIB to appear before it within 36 hours. Hearings were televised nationally. Shaking, I pleaded for a week to prepare. Parliament's response was, take it or leave
it. Thankfully, my next bar exam was still a week away. I had 36 hours to become an equality rights expert.

I contacted a computerized legal service and pleaded with officials to search Canadian legislation for "blind," "deaf," "disabled," etc. They read search results over the phone. It was a moment I'll never forget. In the background I heard thousands outside City Hall, singing "Imagine" in remembrance of Beatle John Lennon, murdered that week.

Arguments made by various organizations before the parliamentary committee and elsewhere in 1980 were simple: If the Charter is to guarantee equal rights, it must include equality for all, including persons with disabilities, not just equality for some.

Canadians with disabilities face unfair barriers when seeking employment, education, and opportunities that others take for granted. We needed and need equality.

Canada planned to pass the Charter in 1981, which happened to be the International Year of the Disabled. Canada co-sponsored the U.N.'s declaration. How could Canada deny us at such a time? After the public hearings, the federal government wouldn't budge, despite enormous pressure.

At home, I watched live on television the government's presentation before the parliamentary committee rejecting our proposed disability amendment. I ran to the phone, called a newspaper minutes before its deadline, and denounced the government for being wrong and unfair. My words ran the next day on page 2, beside the government's speech.

Trudeau wanted to win public support for the Charter over the heads of the holdout premiers. Advocates kept up the pressure.

Then word came from a justice minister named Jean Chrétien that the government would support our disability amendment. The federal Tories and NDP agreed.

The disability amendment was an enormous milestone on our road to equality. The media hardly noticed. The Charter gave Canadians with disabilities a potent tool to urge governments to remove barriers we face, to take court action if it was refused, and to show us that we are entitled to fully participate in Canadian life.

Twenty years later, some governments have acted. The Supreme Court has enunciated visionary legal principles about disability equality. Law journals contain disability equality cases, some better than others.

Yet we still face many barriers.

Litigating Charter claims, one barrier at a time, costs too much and takes too long. That's why many worked so hard over the past seven years to get Ontario's Conservatives to fulfil their promises to enact and implement an effective Ontarians with Disabilities Act.

Our campaign for equality continues. We now know much more about how to wage it and are more determined than ever.

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David Lepofsky is a Toronto lawyer and activist for reforms to protect the rights of persons with disabilities. Learn more at http://www.odacommittee.net