Éducaloi: Your starting point for citizenship education! Preparing the citizens of tomorrow Éducaloi: Your starting point for citizenship education! This document has legal information up to date as of July 1, 2017. None of the information in this document should be taken to be legal advice. These materials are the exclusive property of Éducaloi. Teachers in Quebec schools can use them, but for non-commercial purposes only. The materials must be used in their original form, without modification. © Éducaloi, 2010. (Last Update, 2017.)

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reasonable accommodation

Supreme Court of Canada Today’s Agenda The Right to Equality and Freedom from Discrimination The Canadian and Quebec Charters Reasonable Accommodation Multani v. Commission scolaire Marguerite-Bourgeoys Two Decisions of the Supreme Court of Canada Commission des droits de la personne v. Collège Notre-Dame

Canadian and Quebec Charters What is a charter? It is a document describing the main rights and freedoms society gives all people. Can you name the rights and freedoms protected by the charters?

Canadian and Quebec Charters Rights and Freedoms Right to an education Freedom of religion The right to life, freedom and security Freedom of expression Right to equality The right of children to be protected and taken care of by parents The right of of a young person who commits a crime to be held in an age-appropriate facility

The Canadian and Quebec Charters Who must respect the Canadian Charter? The Quebec Government Laws Decisions Actions of government representatives E.g., government departments, municipalities, public schools, municipal and provincial police The Canadian Government E.g., government departments, police officers of the RCMP

Canadian and Quebec Charters Who must respect the Quebec Charter? Laws Decisions Actions of their representatives Actions Quebec Government E.g., government departments, municipalities, public schools, the provincial police Organizations E.g., private companies, private schools Individuals

The Right to Equality and Freedom from Discrimination Everyone is entitled to the same rights and access to the same services. The right to be free from discrimination flows from the right to equality.

The Right to Equality and Freedom from Discrimination Preventing someone from enjoying the same rights and having access to the same services as other people… on the basis of a personal characteristic recognized in the charters: religion physical or mental disability race or ethnic or national origins etc. Can you name the personal characteristics mentioned in the charters?

The Right to Equality and Freedom from Discrimination Some prohibited grounds of discrimination: social status (e.g. being unemployed) language race sexual orientation pregnancy political beliefs skin colour gender civil status (e.g., being singles or married) gender identity or expression religion disability age (except when the law allows)

The Right to Equality and Freedom from Discrimination Direct Discrimination InDirect Discrimination A rule looks like it is general and aimed at everyone, but in reality it prevents certain people from exercising their fundamental rights. E.g., “No animals allowed in the school.” This rule indirectly prevents blind students who use seeing-eye dogs from attending the school like other students. The rule is valid BUT an exception - called an “accommodation”- should be made. A rule is specifically aimed at certain people. E.g., “Blacks cannot attend this school.” This rule is directly discriminatory because it prevents some people, on the basis of race, from attending a public school like everyone else. The rule is not valid. This is discrimination prohibited by the charters Note: A rule that results in indirect discrimination is not automatically invalid: the rule can continue in force if an accommodation measure can be put into place without causing undue hardship to the organization that has to adopt the measure.

Reasonable Accommodation Definition Reasonable accommodation is an exception granted to someone so that he or she can exercise the same rights and have access to the same services as other people.

Reasonable Accommodation Conditions for Granting Accommodation The person was a victim of discrimination. The person asks for an accommodation. The accommodation measure is reasonable.

Reasonable Accommodation When is accommodation reasonable? When it does not cause undue hardship. This means that the accommodation meets these criteria: It respects the organization’s financial and other resources. It does not interfere with the organization’s operations. It does not violate the rights or jeopardize the safety of other people.

Reasonable Accommodation Take note! The right to equality doesn’t mean that everyone has to be treated exactly the same way.  It can happen that treating someone in the same way as other people results in discrimination toward a person with a different personal characteristic. We saw that this is indirect discrimination. To make sure this person can benefit from the same rights and services as everyone else, this person has to be treated differently by putting a reasonable accommodation measure into place.

Court Decisions Multani v. Commission scolaire Marguerite-Bourgeoys Commission des droits de la personne v. Collège Notre-Dame

Multani v. Commission scolaire Marguerite-Bourgeoys Gurbaj’s father asked a court to order reasonable accommodation so his son could wear his metal kirpan to school. Decision Was there discrimination? There was no direct discrimination. But there was indirect discrimination.  The rule in the school’s code of conduct is valid. BUT it prevented Gurbaj, because of his religion, from having access to the same services as everyone else. Is accommodation possible? Yes. There was no infringement on the rights and safety of others. There was no undue hardship on the school.    Students should therefore be able to wear a kirpan to school, under certain conditions.

Multani v. Commission scolaire Marguerite-Bourgeoys Questions to Consider: Could this decision apply to other religious practices? Should all religious symbols be banned in schools? What do you think the level of security should be in your school? Total security (no scissors, compasses or hockey sticks) or a reasonable level of security? Would the decision have been the same in a place where there is a lower tolerance for risk, such as airports?

Commission des droits de la personne v. Collège Notre-Dame Maud contested the decision of Collège Notre-Dame refusing her admission on the basis of her reduced mobility.   Decision Was there discrimination? Yes The college’s main purpose is to give its students an academic education, not to turn them into athletes. Maud was physically capable of meeting the standards of the college’s academic program. Is accommodation possible? Yes. There was no infringement on the rights and security of others. There was no undue hardship for the school.   The college should have admitted Maud and put into place accommodation measures.

Commission des droits de la personne v. Collège Notre-Dame Questions to Consider: The college did not offer to adapt its academic program or its facilities for Maud. But what about students who are temporarily injured or ill? Should the school adopt special measures for them? If a school has a sports-studies program, whose main goal is to train high-level athletes, should it be allowed to have an admissions policy that excludes students with physical disabilities?  According to the court, it was possible for the college to adopt accommodation measures to help Maud get around and participate in activities. What do you think those measures would be? In your opinion, would this decision also apply to students with mental disabilities?

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