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CCD's Role in Shaping Charter Equality
The disabled community, led by CCD, had worked hard to ensure that disability was included amongst the groups enumerated in the equality rights clause in the Charter of Rights and Freedoms. And so a great experiment was begun. Believe it or not, even as the Charter became the supreme law of Canada, there was not yet a consensus about what Charter equality meant and how it would be applied in actual cases. Almost anything was possible.
In the United States equality rights under the Bill of Rights had been limited to formal discrimination involving hatred and animosity between groups. Many, including most legal academics, assumed that this was all that was contemplated by the Canadian equality clause. If this assumption proved correct the Charter would have had the same negligible impact on the day to day reality of Canadians with disabilities as the Bill of Rights has had for Americans.
CCD had begun its work of intervening in human rights cases before the Supreme Court of Canada a few years before the first Charter equality case was argued there. Planning far ahead, its leadership had already recognized and accepted that real equality could transform how people with disabilities were perceived and treated. Meaning was attached to the words "equal benefit of the law" as it invited the Court apply a meaning of discrimination that took direct aim at the barriers that served to isolate and disadvantage persons with disabilities. Why shouldn't persons with disabilities gain equal benefit from education, transportation and social programs? Why shouldn't employers be compelled to find inclusive ways of performing work that opens doors for persons with disabilities. The Court accepted CCD's invitation and interpreted human rights law as redressing discriminatory effects, regardless of the motivation of those responsible. It made sure that when the first disability cases came along the law was ready.
By so doing the Court created a kind of substantive equality that was distinctively Canadian and had the potential to challenge the formal kind of equality applied by courts south of the border.
CCD formed a working group composed of some of its most forward thinking members to discuss the kind of Charter equality that would work best for persons with disabilities. It quickly became apparent that the best possible option was to convince the Court that substantive equality, as reflected in its recent human rights jurisprudence was the way to go. But how to convince it to go there?
The Committee's members recognized that it would take some time before Charter disability cases started to come before the Court. As with the human rights cases, it decided to waste no time in finding a way to share their dream of persons with disabilities entitled by the Charter to enjoy equal opportunity and equal benefit from all branches of government at every level. It decided to intervene in the first Charter equality case to come before the Court: Andrews v The Law Society of British Columbia. Improbably the case concerned whether non-citizens could become lawyers. Undaunted CCD's leaders said the perspective of persons with disabilities must be amongst those heard when that first case gets argued.
CCD understood that other equality seeking groups were also interested in how the Court decided this first case. Emissaries were dispatched to share CCD's dream and to see if ways could be found to present a united front. Remarkably these groups were respectful of the work CCD had done and its willingness to work collaboratively. The results were very positive. Groups came around to recognizing that the substantive equality aimed at overcoming unintended as well as intended barriers worked well for all. As a consequence, there ended up being great commonalities in the positions interveners, including CCD, presented to the Court.
The Court listened respectfully to the arguments made on behalf of the communities who had worked so hard to ensure that there was a Charter in the first place. It was pleased to learn that the model of equality it had recently applied in human rights cases found favour with CCD and other equality seeking groups. It carefully examined the American alternative and found it inadequate to the task Canadians had set for their Charter.
Hopefully the disabled community will never forget how influential CCD was throughout this process. Something transformative was accomplished by a dedicated group of people who ably served their community.
While the Court's approach to equality has wavered over the years, and there have been disappointments, it is heartening to watch as the Court has recently returned to Andrews as the source of what is meant by equality. It got it right the first time, and disabled people have gained ever since.
The rest of the world has an interesting perspective on what CCD accomplished. There is great respect for Canadian Charter cases amongst persons in all corners of the world who follow the impact the law has had on the lives of persons with disabilities. We should pay heed to what they have to tell us and take some satisfaction from what was accomplished back then, without for a moment forgetting how much remains to be done. ~ By David Baker