Canada’s Proposed Disability Act: Improved Access to Justice, Air Transportation & A Federal Commissioner–Let’s do it!

The issues relating to accessibility laws are ones that I have been studying for a number of years. They are also quite important to me as a person with a disability. As a law professor, one of my primary research areas is administrative law which deals with regulation by government of various socioeconomic issues. I have also spent considerable time researching and writing about accessibility legislation and disability rights over the past few years. I don’t believe in doing disability research without engaging with other people with disabilities because lived experience is important. My research therefore always includes interviews, attending public consultations and getting out into the disability community.

Last Wednesday, February 8, 2017, in Toronto, marked the end of the federal government’s public consultations designed to gather input for the new federal disabilities act. The consultations have been organized by Minister Carla Qualtrough, the Minister responsible Sport and Persons with Disabilities. Everyone was provided three minutes to speak. I attended and offered comments based on my research and lived experience.

I respect the government’s initiative to create an Act to promote and protect accessibility at the federal level. I also applaud the government’s attempts to encourage the disability community to participate by sharing their experiences at the consultations. Above all, I appreciated hearing the rich and often deeply detailed comments provided by the large number of people who attended the public consultation last Thursday. (More people attended than was anticipated by about a roomful). I think the open mutual respect and support  among those who attended was one of the most energizing features of the evening. There was a vibrant energy in the room that I think everyone felt.

With that background, and drawing in part from my research, here are my reflections on the proposed new federal disabilities act shared at the consultations in Toronto on Feb. 8, 2017.

 

First, although it is a statute that is being developed under federal constitutional jurisdiction, there are areas where the federal government may be able to help out the provinces through a variety of means including transfer payments. My hope is that the government will think about these areas -such as healthcare which might include attendant care- in developing its legislation. On this front, there were some very interesting ideas at the Toronto consultations , such as having a model standard that provinces could opt into. It would be detrimental to the disability community for the federal government to be myopic in this regard.

Second, my research has shown areas where accessibility legislation that already exists elsewhere in the country could be improved. Analysis of these laws show that they do not reflect the intersectional lived experience of people with disabilities on the ground. For example, disability is often intimately bound up with poverty and gender. Women with disabilities, individuals with disabilities who are transgendered, racial minorities, and other marginalized individuals often face a myriad of barriers in accessing work and other fundamental aspects of an independent life. More needs to be done to explore how legislation can best assist with these issues. I hope that the legislation provides room for such research and improvement to take place.

Third, access to justice for people with disabilities is a topic that has largely been overlooked by accessibility legislation. Accessibility legislation is not meant to be a panacea to solve all problems of disability discrimination. Disability discrimination claims will still arise. Indeed, disability discrimination forms the largest percentage of matters brought before human rights tribunals in Canada. Yet, there is no legal aid for such matters. Moreover, in other types of matters, where individuals with disabilities have difficulty representing themselves for disability-related reasons, legal support and understanding of disability issues by authorities is similarly sparse. The federal disabilities act could assist by providing for legal aid for cases of disability discrimination brought before the federal human rights commission and tribunal, and by setting a standard for legal aid to be adopted by the provinces and territories.

Fourth, transportation for people with disabilities, and especially air travel, requires serious scrutiny. Between 2006-2013, there were over 130 reported cases concerning disability access to transportation before the Canadian Transportation Agency. One hundred and twenty (120) of those cases dealt with air transportation in Canada. This is astonishing. There are also numerous cases that do not make it to the agency because individuals may choose not to bring a complaint or be unable to do so. When it comes to air travel, it is not uncommon for airlines to change aircrafts for reasons of efficiency despite knowing that mobility devices may no longer be able to fit within their cargo doors. This experience has been documented in the media as recently as last summer. It is also an experience that I have encountered personally. The result is a disregard for the time of the person with the disability who is forced to miss appointments, work, and other engagements despite having complied with the airline’s conditions. More importantly it is difficult to reconcile with the guarantee of ‘service free of discrimination’ promised by quasi-constitutional human rights legislation in Canada. Certainly, there is a place for federal accessibility legislation to address air travel which falls within the federal government’s jurisdiction under the constitutional division of powers.

Fifth, and finally, I think there’s much to be supported in the idea of a federal oversight Commissioner. This appointee could be responsible for accessibility and for advocating for the rights of persons with disabilities. Canada has models for specialized commissioners at the federal level (such as the federal Privacy Commissioner and the federal Access to Information Commissioner). Commissioners can take the role of a specialized ombudsperson appointed by Parliament, but there is room for additional creative ideas about how the office of a Disability Commissioner might be designed. At the very least, I would hope for input from the disability community in choosing suitable candidates. As a form of governance, commissioners in other Canadian federal domains have shown success in doing three things: i) promoting rights and educating the public; ii) resolving complaints, often through negotiation or other alternative dispute resolution means that parties can buy into; and iii) keeping a check on government. It will be important to ensure that the Commissioner has expertise in disability and human rights in order to be effective. Enforcement has been one of the downfalls of accessibility legislation previously enacted elsewhere in Canada. Ensuring compliance and culture change will be the true measures of success for any accessibility legislation. Designing an appropriate federal commissioner’s office could go a long way in attaining those goals.

It was energizing to participate in the consultations for building disability access legislation. Every step is a step closer to a more inclusive society. I look forward to the final stages.

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