DRPI – Canada Monitoring Policy and Law Theme By: Miha Dinca, Roxanne Mykitiuk, Yvonne Peters, Michael Prince and Ken Singh

Monitoring Policy and Law – Team Members Roxanne Mykitiuk, theme leader, Osgoode Hall Law School Yvonne Peters, theme leader, Disability rights legal expert Michael Prince, University of Victoria Marcia Rioux, Project Director, York University Mihaela Dinca, Project Coordinator

Monitoring Policy and Law – Organizational Partners ARCH Disability Law Centre Canadian Human Rights Commission (CHRC) Centre Interdisciplinaire de Recherche en Réadaptation et Intégration Sociale (CIRRIS) Office for Disability Issues, Government of Canada (ODI) Office des Personnes Handicapées de Québec (OPHQ) Raoul Wallenberg Institute of Human Rights and Humanitarian Law (RWI)

Objectives Analysis of legislation, policy and case law at federal and provincial levels (corresponding to the 4 monitoring sites for Monitoring Individual Experiences) to assess the human rights protections for Canadians with disabilities Identify the changes required to existing legal and policy frameworks to improve the lives of people with disabilities in Canada

Research questions How are the federal and provincial responsibilities for disability allocated? What are the approaches to disability employed by policy makers and how these impact on the realization of disability rights ? How have Canadian courts and statutory human rights bodies addressed disability issues?

Research flow Research tool – Law and policy template Data collection Data analysis Dissemination of findings

Law and policy assessment template Developed in the context of DRPI-International and adapted to the Canadian context (ongoing process) Grounded in the Human Rights Approach Designed to collect data and monitor trends in legislation, case law and policy Organized into headings/questions (based on international HR instruments)

Methodology to implement the template Scope: Guidelines/consistency of data collection process Components:  Policy database  Legislation database  Caselaw database

Methodology - components Policy database  Structure: Distinction between ‘interpretive’ policy and ‘other’ policy  Content: Federal/provincial government publications; committee reports Discourse addressed by respective doc

Methodology - components Legislation database  Structure: Within each Question legislation organized by jurisdiction Web links created to the corresponding legislation  Content: Interpretative policy that gives substance to respective legislation Regulations

Methodology - components Caselaw database  Structure: Within each question link to the legislative provision caselaw interprets  Content: Substantive detail on the case: facts/legal issues/major line of argument Interpretive notes (to provide reader with line of logic used by reserachers to get a certain conclusion) Interpretive policy that shed lights on the case law 2 category of cases:  Cases that stem from common law principles instead of legislation  Non-disability related cases that bear significance to disability issues

Methodology - components Synthesis Documents  Integrate main findings, identify gaps, and policies that are consistent/inconsistent with the legislation, and pinpoint where the legislation is interpreted narrowly or construed broadly Limitations

Research Process Analysis of legislation, case law, policy and legal institutions Key informant interviews Purpose and effect analysis – reconciliation Create a framework interweaving analysis and results

Sample Data Legislation  BC Human Rights Code, s.8 Policy  Interpretive Policy - The Duty to Accommodate after Meirorin and Grismer  Non-interpretive Policy- Disability and Social Policy in Canada, 2e (2006) by Mary Ann McColl, Lyn Jongbloed (eds) Case-law  C.U.P.W. v. Canada Post Corp., 2001 BCCA 256, 87 B.C.L.R. (3d) 341  MacBain v. Canada (Canadian Human Rights Commission), (1985), 22 D.L.R. (4th) 119

Preliminary Findings H1Q1 - Legislation – prohibits discrimination on the grounds of disability – but disability is not clearly defined H1Q2 – Common law principle of parens patriae tempers individual autonomy H1Q4 – broad and complex nature of disability

Preliminary Findings Contd H1Q5 – Overlaps with H1Q3 (equal participation) – central to employment/education H1Q6&Q7 – Designation v. Process – what constitutes a “barrier”? H1Q8 – Both case law and legislation are equally apt at addressing indirect discrimination

Preliminary Findings Contd. H1Q9 –– Exclusion to providing reasonable accommodation:  BFOR’s  Good Faith Exclusions H1Q10 - Good faith requirement to provide reasonable accommodation

Next Steps Finalize data collection & analysis Development of a database Scoring Method Conduct key informant interviews Integrate theme’s findings with the other themes’