1 _____________________________ ____________ _____________________________ THE RIGHTS OF PERSONS WITH DISABILITIES LAURIE LETHEREN & YEDIDA ZALIK ARCH DISABILITY LAW CENTRE

2 WHAT IS ARCH? Specialty legal aid clinic dedicated to defending and advancing the equality rights of people with disabilities in Ontario. Governed by a volunteer board of directors, a majority of whom are people with disabilities. Offer summary advice and referral service to Ontarians with disabilities; Provide education to people with disabilities on disability rights, and to the legal profession about disability law; make submissions on matters of policy and law reform. You can find more details on ARCH’s website at: ARCH DISABILITY LAW CENTRE

ARCH’s Work Promote social model of disability (disability is caused by physical, social and attitudinal barriers. Barrier to be removed to allow full participation for all. Not that person with disability must be “fixed” or must just “fit in”) Cases we take on must have potential for a systemic benefit for people with disabilities in Ontario Purpose is often to ensure that the disability perspective is heard by court or government committee

ARCH DISABILITY LAW CENTRE Call ARCH if you: ARE A PERSON WITH A DISABILITY and you NEED ASSISTANCE OR HAVE A QUESTION ABOUT : your human rights your attendant care services your rights as a person living in a group home your rights as a student or a worker capacity to make your own decisions

5 Laws that Protect and Promote the Rights of People with Disabilities Canadian Charter of Rights and Freedoms Ontario Human Rights Code Accessibility for Ontarians with Disabilities Act United Nations Convention on the Right of Persons with Disabilities

6 EMERGING ISSUES IN DISABILITY RIGHTS Right to full inclusion in all aspects of society Right to make own decisions and have disability needs accommodated in process Right to have disability needs accommodated to allow for full participation Use of Technology

7 Right to full inclusion in all aspects of society Right to live in neighbourhood of your choice The Dream Team v. City Toronto, Sarnia, Smiths Falls and Kitchener Waterloo HRTO Current application before the Human Rights Tribunal of Ontario The Dream Team is a group of advocates who are psychiatric consumer survivors who promote the importance of safe, supported, inclusive housing for people with mental heath disabilities Challenging the municipal restrictive by-laws that limit the proximity of homes for people with disabilities in a municipality Most of Settled or are near settlement Toronto in discussions

8 Right to full inclusion in all aspects of society Right to Attend Neighbourhood School with Peers Emily Eaton v. Brant County Bd of Ed (SCC 1997) First 3 years of school in fully integrated setting School decided remaining in integrated “not in Emily’s best interests” Ontario Court of Appeal found that segregation did violate Emily’s Charter Rights “from earliest age children with disabilities should see themselves as part of society and children without disabilities should see them the same way Board of Ed appealed to SCC

Right to full inclusion in all aspects of society SCC determined that segregated setting did not violate Emily’s rights: Segregation can be both protective of equality or can violate equality depending on circumstances and person’s disability and dound in this situation segregation did not burden or disadvantage Emily BUT Must breakdown the structures and assumptions that result in the relegation and banishment of disabled persons from participation Only when integrated setting cannot be adapted to meet the special needs of an exceptional child will a placement outside of this setting be required Most school board policies ensure that inclusion in regular classroom is the first placement for all students

Right to full inclusion in all aspects of society Emily fought on. Before appealing the Div. Court decision to the Court of Appeal, her whole family was baptized. She switched to Catholic Board and remained integrated in class with her peers through all her school years. In 2010, Emily and her family entered China’s Forbidden City step by step despite a declaration from their tour guide that “it would be impossible”.

Right to make own decisions Must start with assumption that person has capacity to make own decisions Question to be asked is “does the person understand the decision to be made and the consequences of making and not making that decision” Those assisting must do what is necessary to accommodate the disability needs of person so that they can make the decision. This may involve breaking down information into small parts; allowing the person to communicate through symbols or gestures all them to have a support person. People with mental health and intellectual disabilities have the right to make bad decisions just like everyone else

Right to make own decisions R v. DAI Supreme Court of Canada Young woman with intellectual disability advised teachers and police that she was victim of sexual assault In court, person who does not swear an oath can communicate the evidence on a promise to tell the truth At trial the judge forced the victim to explain abstract concepts of “truth” and “lies” and when she could not through out her evidence. This was common occurrence. Supreme Court of Canada said: Persons with mental disabilities are not required to meet a more onerous test than any other witness before they are even allowed to take the stand. If a witness can describe what happened to her – she can testify after saying that she promises to tell the truth.” Also notes that the questioning of mentally disabled adults may require “accommodation” or individualized supports so that their evidence is best communicated in court.

Use of Technology Jodhan v. Attorney General of Canada Woman with vision disability could not access on-line government information and could not apply for jobs through the required job bank portal because government’s computer code was not compatible with very basic screen reading software Federal government appealed to Federal Court of Appeal and argued Ms. Jodhan still had access to all the information because she could go down to a government office to make a request, could fax in job application, could order paper copies of documents (remember she is legally blind!)

Use of Technology Government lost Court understood that having to make in person applications or requests what not equal access Her application would not be considered in same manner as others Unlike others who can access information from home at any time, she was constrained by having to go through government offices

15 Right to have disability needs accommodated to allow for full participation Moore v B.C. Ministry of Education Supreme Court of Canada When Jeffrey Moore was in Grade 3 he was found to have a Learning Disability It was recommended that he attend a Diagnostic Centre run by school board for remedial literacy program Just as he was to go, school board closed the Centre and did not put a similar program in place Jeffrey ended up at a private school for the remainder of school as it was believed he would never learn to read in public system It took almost 18 years to reach Supreme Court of Canada

16 Right to have disability needs accommodated to allow for full participation Moore v B.C. Ministry of Education Supreme Court of Canada Supreme Court of Canada found: School board had discriminated against Jeffrey as a student with a disability by failing to provide him with an education that was to be available to all children, “failed to provide him with the opportunity to reach full potential which was the objective of education” Accommodations of people with disabilities are “not mere luxuries” Accommodations “cannot be determined on mere efficiencies” When school board decided to make budget cuts it discriminated against students with disabilities in failing to consider the discriminatory impact of its decisions Ordered school board to pay all private school fees Ordered all legal costs of parents from the beginning to be paid by board

17 Convention on the Rights of Persons with Disabilities (CRPD) CRPD came into effect May 2008 Canada has ratified meaning Canada can be held accountable for violation of the provisions mentioned in the Convention Canada has not implemented the Convention which means it does not consider the Convention to be “law” in Canada Very important document to people with disabilities both for its substance and because of the way it was developed Disability rights organizations ensured a role for disabled people and their organizations in the implementation and monitoring of what became the Convention.

18 Convention on the Rights of Persons with Disabilities (CRPD) Contains positive rights live independently and participate fully in all aspects of life; equal recognition before law and legal capacity of the persons with disabilities guaranteed the right to inclusive education at all levels full and effective participation and inclusion in society Recognizes the importance of technology to people with disabilities

19 ONTARIO HUMAN RIGHTS CODE Ontario Human Rights Code imposes duties on service providers such as community care workers, legal clinics, doctors, business etc to accommodate the needs of people with disabilities to the point of undue hardship. Definition of Accommodations Accommodations are “changes that are made or things that are put in place to stop or prevent discrimination” Accommodations are steps taken so that the person with a disability is not disadvantaged and can be fully included

20 ONTARIO HUMAN RIGHTS CODE Examples of Accommodations: Instead of refusing the job to a person who does not use a keyboard or mouse to type, find out what kind of tools they need to do the job in their own way Instead of making the person with the wheel chair sit at very front or very back of movie theatre have a way to remove a chair so that she can sit with her friends Allow a person to direct his care by using a symbol board or other device Accessible websites, documents, communicate in ASL,

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT (AODA) Customer Services Standard Establish policies on service that promote the dignity, integration and equality of opportunity. Establish a policy about the use of assistive devices Communicate with a person with a disability in a manner that takes into account his or her disability. Permit the use of service animals or support persons, and provide notice of cost of admission for support person Train all persons policies, practices and procedures, Establish and provide for a feedback process,

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT (AODA) INTEGRATED STANDARD Information and Technology Information in accessible formats Websites Accessible Employment Must accommodate in recruitment, in job setting, develop individual accommodation plans Must have return to work process Must consider disability in job reviews

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT (AODA) INTEGRATED STANDARD Transportation Training of employees Fare charges Use of Assistive Device Alternative stops Specification in vehicles Stop announcements, lighting, grab bars etc. All Standards have different application depending on size or organization Most not in effect until 2014 Lots of good information at: AccessON website

24 Status of Passport and Special Services at Home Funding In the past, some adults with a developmental disability received funding under the Special Services at Home (SSAH) Program. Starting April 1, 2012, SSAH is for children only. Adults with a developmental disability (or their families) who received SSAH funding are now supported entirely through the Passport program. If you received SSAH funding in You do not have to apply for funding in You will automatically receive the same amount of money you received in The money you receive in will be under the Passport program, not SSAH. You can use your Passport funding in the same ways you used your SSAH funding. There are 12 Passport offices across Ontario. If you have any questions, contact the one nearest you.one nearest you

25 Status of Passport and Special Services at Home Funding Government stated reasons for changing Passport Having a single direct funding program for adults with a developmental disability will make it easier for them to apply for services and supports. What’s next Government says it is expanding the Passport guidelines to cover a broader range of services. Government says it will be introducing changes over the course of the next year. Government has stated that before they make further changes, they will consult with recipients and their families, as well as Passport agencies.

26 For more Info on Passport and Special Services at Home SSAH Provincial Coalition: to learn more about SSAH, resources and connect with families. Individualized Funding Coalition for Ontario : to learn more about individualized funding and supports that work. SSAH is one form. Family Alliance Ontario : to locate regional family networks, resources and connect with families.

27 THANKS

SCENARIO ONE You are a person who uses a wheel chair for mobility. You see a job ad that states “driver’s licence required”. You do not drive. You also learn that interviews will be held in a building that has three steps and no ramp to its entrance. What can you do. You think you are very qualified for the job.

SCENARIO TWO You work at a youth drop-in centre. You have “drop in and chat” sessions every Tuesday at 4:30. On Thursday a young woman who is deaf comes to ask about the drop in. None of the employees speak ASL. What should the drop-in centre do?