Guest Lecture on the History and Advocacy of Disability Rights in the Canadian Charter of Rights and Freedoms

Comparative Constitutional Histories: The United States vs. Canada

When examining American history, the birth of the nation is often traced to the Federalist Papers and the ideology of an elite democracy replacing a monarchy through revolutionary war. Major social reforms in the United States, such as the civil rights movement of the 1950s and 1960s, were driven by grassroots protests and the ban on racial discrimination, followed closely by the women's liberation movement. A pivotal documentary to understand the American disability rights movement is Crip Camp, which illustrates the origins of these grassroots efforts.

In contrast, the Canadian experience is markedly different. Canada was not born from a political ideology or a rebellion against monarchy. Instead, the country was formed as a deal between leaders who believed it was financially beneficial to unite for projects like building railroads and because of a shared fear of invasion by the United States. During the pre-confederation era and 1867, the public remained largely as spectators, watching the process unfold like an audience at a ballgame rather than active participants in a grassroots movement.

The Constitutional Framework and Pre-Charter Law

Before the enactment of the Charter of Rights and Freedoms in $1982$, Canadian constitutional law was centered on the British North America Act $1867$, now referred to as the Constitution Act $1867$. This British statute federated the provinces, with the exception of Newfoundland. The most critical components of this act are Sections $91$ and $92$. Section $91$ outlines the exclusive powers of the federal government, such as criminal law, while Section $92$ details the powers granted to provincial governments. Prior to the Charter, constitutional challenges were focused almost exclusively on whether a level of government had overstepped its jurisdictional bounds.

Unlike the unitary system in England, where the Parliament has absolute authority, Canada operates under a two-tiered federalist system. The deal struck in Sections $91$ and $92$ remains a source of political conflict today, with provinces like Alberta and Quebec frequently contesting the division of powers. This foundational arrangement was hammered out by the "Fathers of Confederation" with very little public input or profound ideological debate, occurring over a short period of roughly one or two days.

The Patriation Saga and the Push for Reform (1980–1982)

For decades, discussions regarding the patriation of the constitution persisted between federal and provincial governments. Patriation meant transforming the constitution from a British statute into an organic Canadian law that could be amended domestically. Inclusion of an amending formula was necessary because Britain could previously amend the statute like any other law, but a domestic version required a specific agreement on how many provinces must concur for changes to occur. Law students in the late $1970s$ often found these discussions, which focused on administrative mechanics, tedious and irrelevant to the average citizen.

Between $1970$ and $1980$, Prime Minister Pierre Trudeau attempted to negotiate patriation, adding the prospective Charter of Rights to the discussions. After a failure to reach an agreement with the provincial premiers in the summer of $1980$, Trudeau announced in October $1980$ that the federal government would proceed unilaterally. This led to an $18$-month political "tennis match" between Trudeau and the eight holdout premiers. The media coverage focused on the personalities and egos of the politicians rather than the substance of the rights to be included. The public remained spectators in a process that would ultimately regulate the very governments having the dispute. No traveling consultations were held before the Charter's introduction to ask the public what rights should be protected.

The Advocacy Campaign for Disability Rights

In $1980$, David Lepofsky was a $23$-year-old law student who had just finished his articling apprenticeship. Upon learning that the proposed Section $15$ of the Charter did not include disability—listing only race, national or ethnic origin, color, religion, age, and sex—he sought to intervene. Advocacy at this time was difficult due to a lack of modern tools; there were no personal computers or the internet. News releases were typed on typewriters and sent via snail mail, and transcripts of parliamentary proceedings, known as Hansard, were not readily available online. Long-distance phone calls were charged by the minute ($\text{min}$), making national organizing expensive.

At the time, the societal view of disability was rooted in charity rather than rights. Disability rights were not taught in law schools, and there was no precedent for grassroots disability advocacy like that seen in the United States. Lepofsky obtained a platform by becoming the volunteer constitutional law spokesman for the Canadian National Institute for the Blind (CNIB). He and other advocates, including Yvonne Peters (a blind social worker and lawyer in Saskatchewan), eventually coordinated despite the isolation. Lepofsky's efforts were described as "swimming up Niagara Falls" because the media was uninterested in the legal contents of the Charter and Trudeau was in a hurry to pass the legislation.

Legislative Success and the Joint Committee Hearings

Pressure from the opposition forced the federal government to extend the hearings for the Joint Committee of the Senate and House of Commons on the Constitution in December $1980$. Lepofsky received a call giving the CNIB only $36$ hours ($\text{h}$) to prepare a presentation in Ottawa. Three major disability organizations eventually presented: the CNIB, the Coalition of Provincial Organizations of the Handicapped (COPOH, now the Council of Canadians with Disabilities), and the Canadian Association for the Mentally Retarded (now Inclusion Canada).

The arguments for amendment centered on the fact that disability barriers are pervasive in legislation and that people with disabilities are an "equality-seeking group." A central principle was that "equality to some is equality for none." Advocates also leveraged the fact that the United Nations had declared $1981$ as the International Year of the Disabled Person (IYDP) with the theme "equality and full participation." They argued it was hypocritical for Canada to co-sponsor this UN motion while omitting disability rights from its own constitution. A key ally was David Smith, a Liberal MP who chaired a select committee on the disabled and helped lobby the Liberal caucus from within.

The Final Wording of Section 15 and the Hierarchy of Rights

In January $1981$, Justice Minister Jean Chrétien proposed a middle-ground amendment. He suggested that the list of grounds in Section $15$ would not be exhaustive, allowing courts to add new protected groups over time. However, advocates continued to fight for explicit inclusion, which was finally won on January $28$, $1981$. While disability was added, sexual orientation was omitted and only added by the courts a decade later.

During this process, conflict arose with the women's movement. Some leaders of the feminist movement feared that including disability would dilute the protection of gender rights. They argued for "strict scrutiny" for gender, race, and religion, while disability should be subject to a lower "reasonableness" standard. Lepofsky and Yvonne Peters opposed this hierarchical approach to equality. Ultimately, the New Democratic Party (NDP) proposed a hierarchical amendment, but the federal government voted it down. When the Charter was finalized, Section $28$ was added to give primacy to gender equality, stating that those rights are guaranteed equally to male and female persons notwithstanding anything else in the Charter, which created potential problems for non-binary individuals and those with fluid gender identities.

The Notwithstanding Clause and Current Challenges

Following the Supreme Court's September $1981$ patriation decision, a deal was struck with the provinces that included the Section $33$ Notwithstanding Clause. This allows legislatures to override Section $15$ equality rights for renewable five-year ($\text{yr}$) periods. While authorities at the time suggested it would be political suicide to use the clause, it has since been utilized by leaders like Doug Ford, as well as governments in Quebec and Alberta. The Queen formally signed the constitutional reforms into law on April $17$, $1982$.

In modern times, significant barriers remain despite the Charter. The Supreme Court's ruling in Eldridge v. British Columbia ($1997$) established that failing to providing sign language interpretation in a hospital is unconstitutional under Section $15$. However, many provinces have not conducted the necessary legislative reviews to ensure compliance across all government programs. In Toronto, Lepofsky successfully sued the Toronto Transit Commission (TTC) twice—costing the TTC over $450,000$ in legal fees—to force audible stop announcements. The Accessible Canada Act ($2019$) and the Accessibility for Ontarians with Disabilities Act ($2005$) have also been criticized for weak enforcement and slow implementation, such as the "billion-dollar accessibility bungle" of the new Toronto courthouse.

Questions & Discussion

Aman and Laiaaba asked whether Canada has lived up to disability rights and what barriers still remain.

Lepofsky responded that Canada has not lived up to its potential and is behind other countries, such as the United States, in several domains. He pointed to barriers in the physical built environment, the education system, health care, and employment. He mentioned that the Accessible Canada Act was found to have accomplished very little during its five-year ($\text{yr}$) review and highlighted the recent Bill $101$ (Putting Student Achievement First Act) as a provincial takeover that fails to advance achievement for students with disabilities.

Atharva asked if there is anything in the wording of Section 15 that Lepofsky wishes were different.

Lepofsky stated that the wording itself is acceptable, although the French translation is difficult to understand. His primary dissatisfaction lies with the Supreme Court of Canada's interpretation of the section, which he described as a "mess" of jargon that is difficult for laypeople to follow. He prefers clear, actionable concepts like the "duty to accommodate" and "undue hardship."

Soha asked about the role of the courts when governments fail to act and the distinction between positive and negative rights.

Lepofsky argued that the distinction between positive (government must do something) and negative (government must stop doing something) rights is largely irrelevant, as most rights can be framed both ways. He noted that while courts have been effective in certain areas, such as police conduct, stay-away orders, and same-sex benefits, they have been less effective in the disability context. For instance, despite the Eldridge decision, no government-wide legislative reviews were conducted to help people with other disabilities in the same way same-sex benefit reviews were handled after those court wins.

Asred and Atharva asked why the courts change their minds, citing the shift from the Rodriguez ruling to Carter regarding MAID.

Lepofsky explained that legal outcomes are result-oriented and unpredictable. Shifts often occur because of a total turnover in the judges sitting on the court, differing predispositions of new judges, or different evidentiary records presented during trials (noting that the Carter case had a more robust evidentiary record). He mentioned that courts sometimes explicitly reverse themselves but more often "implicitly" reverse themselves by working around previous principles in new scenarios.

Chris asked about the impact of federalism on disability legislation, specifically the AODA and Accessible Canada Act.

Lepofsky explained that Canada is far more decentralized than the United States. While the US Congress could pass the Americans with Disabilities Act to cover all levels of government and private entities, the Canadian Parliament can only regulate federal entities like airlines and banks. This necessitates lobbying for ten separate provincial acts. Furthermore, the federal government often refuses to use its "spending power" to mandate accessibility requirements on provincial infrastructure projects due to a fear of appearing to invade provincial jurisdiction.**