Keenan Wellar
June 6, 2019
Editors note: While this wire is about protecting the rights of citizens with disabilities in Canada, it pertains also to this country where, despite the existence of the Americans with Disabilities Act, advocates have recently been forced to fight regressions in funding that would force many people into institutions. As we know, in this as in other efforts to achieve equity, the fight by no means ends with the passage of a law.
According to Statistics Canadas 2017 Survey on Disability, some 22 percent of Canadians over the age of 15 have at least one disability that limits their everyday activities. Canada has various existing frameworks for protecting the rights of citizens with disabilities (including the Charter of Rights and Freedoms and the Canadian Human Rights Act), as do the provinces. (Some even have their own accessibility legislation, such as the AODA in Ontario.) But fundamental issues of accessibility and exclusion are, to varying degrees, a daily challenge for more than six million Canadians.
Witness the recent situation of a couple reportedly left abandoned in their wheelchairs at Vancouver International Airport for 12 hours, with two different airlines disputing their responsibility and accountability in the matter. This example is seen as a case in point by advocates like David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance, who points to the lack of standards to ensure the safety and security of citizens with disabilities.
It is appalling treatment, Lepofsky says. The regulator should make it clear that airlines cant pass the buck to each other. I dread entering Canadian airspace if Im travelling alonenot because the service is always bad, but because its not reliably and consistently good.
According to Lepofsky, current avenues for recourse have proven less than satisfying to those who make the effort. The Canadian Transportation Agency, where youre often kicked to, does not, from the perspective of people with disabilities, have a good track record in this area.
For answers to these and other accessibility grievances, disability advocates in Canada have looked south for decades, where the Americans with Disabilities Act has been in place since 1990, signed into law under President George H.W. Bush. The history of ADA enforcement is a fascinating read, featuring everything from an accessible Riverwalk in Milwaukee to a $6.2 million judgement against Sears for failing to properly accommodate employees with disabilities.
Writing in NPQ in 2013 on the acts 23rd anniversary, Rick Cohen summarized progress and challenges related to the ADA, noting that this important legislation didnt solve problems in one fell swoop. Rather, it is a tool that the nonprofit sector can use to address the needs of persons with disabilities.
Last week, after numerous delays in the senate and the adoption of a number of amendments, on the evening of May 29, 2019, MPs voted unanimous consent for Bill C-81, the Accessible Canada Act: An Act to Ensure a Barrier-free Canada (ACA), which is now awaiting royal assent before it becomes law.
Carla Qualtrough, Minister of Public Services and Procurement and Accessibility and a former Paralympic athlete, has in many ways been the public face of Bill C-81 and its three-year journey to the May 29th vote.
I am extremely proud of the work we have done in creating this transformative piece of legislation that will improve the lives of millions of persons with disabilities, said Qualtrough.
As with the ADA experience, supporters of the ACA understand that change will not come overnight, that is has limited reach (primarily the federal government itself and the industries it regulates), and that there will continue to be issues with regulation and enforcement. But after years (and for some, decades) of work, they are nevertheless celebrating an outcome that is evidence of progress towards the ultimate goal of a barrier-free society.
ARCH Disability Law Centre is one of the charitable organizations that has been actively promoting the strengthening of Bill C-81 and for many years prior also worked closely with Council of Canadians with Disabilities (CCD), AODA Alliance, and over 90 national, provincial, and local disability groups.
Advocating to strengthen Bill C-81 has provided opportunities for disability communities to work together, says Kerri Joffe, ARCH Staff Lawyer. It has been a privilege to work closely with so many dedicated advocates. The Accessible Canada Act is stronger because of their tireless work.
Along with their allies, ARCH also pointed to a weakness in ACA that was never addressed, noting in their press release response to the Bills passage:
The use of permissive language may rather than directive language shall or must in the Accessible Canada Actgives government, the Canadian Transportation Agency, the CRTC and other bodies power to make and enforce the new accessibility requirements, but does not actually require them to use these powers.
The opposition parties supporting the bill also engaged in a combination of praise and concern. Conservative MP Luc Berthold made a lengthy and at times very personal speech prior to the final vote, discussing his involvement in supporting causes related to cerebral palsy and how this changed his perspective. Everywhere I go, every organization or public building I visit, anytime I play a sport or recreational activity, I always take some time to ask myself whether the space is accessible by all, said Berthold, before expressing a series of concerns: Even with the [Senate] amendments, the bill uses permissive language, as I already mentioned. If possible, I hope that the ministers who will be implementing the bill will change may to must. If they make this personal, they will be able to do it. The bill says that they may do it, and I hope that they will. Cheryl Hardcastle, New Democratic Party (NDP) Critic for Persons Living with Disabilities noted that C-81 confusingly splinters enforcement and implementation over four different public agencies, rather than providing people with disabilities with the simple one-stop-shopping they need.
Taking these concerns in light of the example of stranded couple at the Vancouver airport, there might still be unacceptable bureaucratic barriers to registering and resolving a complaint. However, the ACA certainly offers the possibility of significant incentives for the cooperation of federally regulated industries, with possible fines as high as $250,000 for travel providers (including airlines). The ACA should serve as a tool to force needed improvements to situations that currently can only be potentially addressed through lengthy human rights processes.
Not to be overlooked, the ACA will have a significant impact on the more than 250,000 employees of the federal public service. The Public Service Alliance of Canada, a union representing more than 180,000 of these workers, welcomed the Accessible Canada Act and its accompanying Accessibility Strategy for the Federal Public Service as important first steps. Chris Aylward, PSAC National President, cautions, we must make sure that these are not just documents that sit on a shelfthey must be implemented and make a real difference in the day-to-day lives of people with disabilities.
The ACA passed the House during National AccessAbility Week, which offered opportunities for celebrating some of what is possible when principles of accessibility and inclusion are indeed put into action. This included a ceremony to celebrate a partnership with Ottawa-based charity LiveWorkPlay for a historic result of hiring of more than 70 persons with intellectual disabilities and/or autism in 25 different federal government agencies and departments.
With the proposed legislation our government is transforming how we think about accessibility and work towards a Canada without barriers, we know this is an important culture change and LiveWorkPlay is helping us achieve that vision, said MP Kate Young, Parliamentary Secretary to Minister Qualtrough.
Despite the passage of Bill C-81 and a week-long celebration of meaningful results related to accessibility, its unlikely that everyday citizens are aware of the ACA, its importance, or the issues it hopes to address. Mainstream media coverage was unbelievably scant, and this did not go unnoticed by those who have been toiling in the trenches. A final word from Greg Thomson of the AODA Alliance:
This is a newsworthy subject. This bill directly affects the needs of over five million people with disabilities in Canada. It ultimately addresses the needs of all in Canada, since everyone is bound to get a disability as they age. The media should reflect on this. It is profoundly regrettable that the medias preoccupation with certain scandals and perceived headline-grabbing issues has left far too many Canadians unaware that there even was a Bill C-81 or a campaign to get it strengthened.
Keenan Wellar
Disclosure: Keenan Wellar works for LiveWorkPlay and was a part of the ceremony.
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