Strong Proof that
Ontarians Do Care
about a Strong ODA

 

A28 THE TORONTO STAR Wednesday, October 7, 1998

Disabilities Act must have teeth
By BRIAN DICKSON

I urge that the Ontario government proceed with the sweeping
barrier removal legislation it has promised.

Full participation of members of the disabled community will
benefit and enrich Canadian society as a whole. In the legal
sphere an Ontarians with Disabilities Act would maximize access
to justice by minimizing the need for costly litigation. One
clear beneficiary of such a law would be the courts.

The courts of Canada have been called upon, through the enactment
of federal and provincial human rights legislation and the
equality clause in the Canadian Charter of Rights and Freedoms,
to identify and remove discriminatory barriers faced by persons
with disabilities.

This was a task the courts did not Seek. It required that we
consider a number of interpretive aids with which many of us were
not previously familiar. While it may not have been a role we
sought, I am proud to say it was a responsibility which we did
not shirk.

For years the courts have grappled with the meaning of equality
in the context of disability. The Supreme Court of Canada, in a
series of decisions written after my retirement, has provided
clear guidance.

The court held in unanimous decisions in these cases that
integrated education should be the norm of general application
for students with disabilities, that each child should be
accommodated in the manner which best meets the child's needs;
and that while an employer may be under no obligation to offer
its employees a long-term disability plan, having done so, the
plan must not single out members of particular disability groups
for discriminatory treatment. Most recently, the court held that
the province must provide deaf patients with sign interpreters so
they can communicate effectively with their health-care
providers.

One might infer from these decisions that the disabled
community's problems have now been solved. It need only identify
a barrier, secure the assistance of qualified counsel and wait
for the Supreme Court of Canada to find in its favour.

Please let me explain why I draw the opposite conclusion.

In Canada, courts and legislatures do not exist in isolation from
each other. The courts must exercise their constitutional
authority in a manner which enhances rather than detracts from
democracy. At the same time, the legislatures must act in a
manner which is consistent with the rule of law.

Thus, when the courts have spoken, as they so clearly have, it
brings justice into disrepute to disregard what they are saying.

It may be in the short-term financial interests of a government
to require people with disabilities to litigate the removal of
every barrier. As a group, they are generally poor. Legal aid
resources are in scarce supply. But such an approach would not
only place an impossible strain on these resources, it would also
put a strain on the moral authority of the courts. When the
Supreme Court of Canada has spoken it should not have to repeat
itself.

Compliance with the court's decisions can be viewed quite
narrowly. For example, I understand the Ontario Ministry of
Health is still considering whether it will take action as a
result of the Eldridge decision. British Columbia has established
a sign interpreter service within the time frame fixed by the
court. Having been given evidence that deaf patients in Ontario
do not have access to sign interpreters, and that in some areas
access has actually worsened as a result of hospital
restructuring, I would have thought the province's responsibility
was quite clear.

In my opinion, compliance should extend further to include the
spirit as well as the letter of the court's decision. While the
Eldridge decision directly applied to health care, the right to
effective communication could just as easily arise in a range of
analogous circumstances.

Take post-secondary education as an example. Apparently, deaf
students are simultaneously losing access to specialized schools
in the United States and having their funding for interpreters at
Ontario colleges and universities reduced. I am concerned that in
these areas the compliance gap would appear to be widening.

By enacting a strong Ontarians with Disabilities Act, the
government of Ontario would be demonstrating respect for the
courts, as well as concern for the equality rights of the
province's disabled citizens.

The courts function best when called upon to ensure the
consistent application of commonly held principles. They struggle
when compelled to devise broad policy responses to meet
particular needs. Legislatures with their mechanisms for
consulting those who will be affected, and the public service to
provide it with technical advice, are in the best position to
carry forward the barrier removal process with due regard to the
guidance provided in the cases to which I have referred.

If the Ontario government's consultation process is accessible to
persons with disabilities, I am confident people with a broad
range of disabilities will be heard about the barriers they face.
Some of these barriers have existed for generations. Others have
been created. Some will require a resolute if incremental
approach; others the reversal of decisions made without an
awareness of the impact they would have on persons with
disabilities.

The former minister promised the disabled community an ODA with
teeth. By this, I assume she meant a act worthy of comparison
with the Americans with Disabilities Act (ADA).

We can benefit from the American experience. Coming from a
country not noted for leadership in government intervention or
social programs, the American Disabilities Act demonstrates a
sincere American commitment to the goal of creating a barrier-
free society.

I understand it has opened the prospect of a post-secondary
education to many who would otherwise have been denied one.
Americans with disabilities enjoy equal access to public
transportation. Major software manufacturers now take account of
their blind customers and television networks accommodate their
deaf viewers.

I understand the representations by disability groups have now
concluded. I look forward to reviewing the bill the Hon. Isabel
Bassett has indicated will be placed before the Ontario
Legislature this fall.

I hope the legislation is powerful and helps those in the
disabled community who are in need of help.

Brian Dickson former Chief Justice of the Supreme Court of
Canada.

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