Affidavit of Francine Arsenault

Court File No. 22633

IN THE SUPREME COURT OF CANADA

(On Appeal from the Federal Court of Appeal)

BETWEEN:

PHILIP CONWAY

Appellant
(Plaintiff)

- and -

HER MAJESTY THE QUEEN

Respondent
(Defendant)

AFFIDAVIT OF FRANCINE ARSENAULT

I, FRANCINE ARSENAULT, of the Village of Perth Corners, in the County of Frontenac, MAKE OATH AND SAY AS FOLLOWS:

1. I am the National Chairperson of the Coalition of Provincial Organizations of the Handicapped ("COPOH") and as such have knowledge of the matters to which I hereinafter depose.

2. COPOH seeks to intervene in this appeal as a friend of the Court because this appeal raises issues of national importance for persons with disabilities. COPOH requests leave to make oral and written submissions on the following two issues:

   (i) whether a right to personal dignity is protected by s. 7

   and/or s. 15 of the Charter; and

   (ii) the correct interpretation and applicability of s. 15(2) of the Charter.

   B. LEAVE TO EXTEND THE TIME FOR THIS APPLICATION

3. COPOH recognizes that the usual time for seeking leave to intervene has expired. However, COPOH was not aware that this appeal was pending before this Court until February 5, 1993 when so advised by one of the lawyers at the Advocacy Resource Centre for the Handicapped ("ARCH"). ARCH first heard about the appeal just a few days prior to notifying COPOH. The COPOH representatives initially contacted by ARCH were immediately aware of the significance of this case for the disabled community. Immediate steps were taken within COPOH to begin the consultation process necessary to make the decision to apply for intervener status and to instruct counsel on COPOH's position on the issues raised. These steps have been taken as quickly as possible given the need for broad consultation within a national umbrella organization and the need for careful and sober reflection on the issues. If leave to intervene is granted, COPOH is prepared to ensure that its factum is delivered in sufficient time to enable the parties to be prepared for the hearing now fixed for March 25 and, in any event, no later than the time for delivery of factums by the other interveners. On February 8, 1993 counsel for the appellant was advised by Anne Molloy, legal counsel to ARCH, that COPOH would likely be seeking intervener status. Counsel for the respondent was so advised on February12, 1993.

   C. BACKGROUND AND INFORMATION ABOUT COPOH

4. COPOH was founded in 1976 and incorporated in 1978. It is a national not-for-profit umbrella organization which represents people with a variety of disabilities.

5. COPOH consists of 9 provincial affiliates which in turn represent approximately 163 local organizations. COPOH is accountable to a membership of approximately 75,000 individuals with disabilities. The member organizations of COPOH are:

   FULL MEMBERS

   • British Columbia Coalition of People with Disabilities (BCCPD)

   • Confederation des Organismes Provinciaux de Personnes Handicappes du Quebec (COPHAN)

   • Consumer Organization of Disabled People of Newfoundland and Labrador

   • Manitoba League for the Physically Handicapped (MLPH)

   • Nova Scotia League for Equal Opportunities

   • P.E.I Council of the Disabled

   • People United for Self-Help Ontario (PUSH-Ontario)

   • Saskatchewan Voice of the Handicapped

   • The Alberta Committee of Citizens with Disabilities (ACCD)

   ASSOCIATE MEMBERS

   • Canadian Association of the Deaf

   • DisAbled Women's Network Canada (DAWN-Canada)

6. COPOH is administered by a Council of Representatives consisting of two designates from each provincial affiliate plus a national chairperson.

7. COPOH was established by people with disabilities to create a voice for disabled Canadians and to promote the full participation and equal opportunity of people with disabilities in Canadian society. COPOH therefore advocates the following objectives:

   • to improve the status of persons with disabilities;

   • to promote self-help for persons with disabilities;

   • to provides a democratic structure for disabled persons

   • to voice concerns;

   • to monitor federal legislation affecting persons with disabilities;

   • to promote policies determined by disabled persons in Canada;

   • to share information and co-operate with disabled persons'

   • organizations in Canada and in other Countries;

   • to establish a positive image of disabled persons in Canada.

8. Over the past 17 years COPOH has provided various levels of government with a disability rights perspective on issues addressing the lives of disabled Canadians in areas such as employment, transportation, communications, housing, living standards and human rights.

9. COPOH is Canada's official representative on Disabled Peoples' International, a body which has been accorded consultative status with the United Nations' Economic and Social Council.

10. COPOH has been granted leave to intervene in cases before the Supreme Court of Canada. In 1985 COPOH intervened in two human rights cases; Bhinder v. The Canadian National Railways, [1985] 2 S.C.R. 561 (duty to accommodate and bona fide occupational requirement ("BFOR") defense), Re Ontario Human Rights Commission et al. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (adverse effect discrimination and duty to accommodate). COPOH was also granted intervener status in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 (equality rights under ss. 15 and 1 of the Charter), and The Canadian Council of Churches v. Her Majesty the Queen and the Minister of Employment and Immigration (1992), 132 N.R. 241 (S.C.C.) (Charter rights or persons outside Canada). In addition, one of COPOH's members, PUSH Ontario, was granted intervener status by this Court in Renaud v. Central Okanagan School District 23, [1992] 2 S.C.R. 970 (duty to accommodate as between employer and union).

    D. THE NATURE OF THE INTEREST

    (1) The Dignity Issue

    (a) COPOH's position

11. COPOH will argue first, that basic dignity rights are protected by s. 7 of the Charter, "security of the person". Secondly, COPOH will argue that a failure to respect the basic dignity rights of persons with disabilities (and other vulnerable persons) constitutes adverse impact discrimination within the meaning of s. 15 of the charter. Finally, it will be argued that a differential standard for respecting basic dignity rights on the basis of sex violates s. 15(1) of the Charter. COPOH contends that it should not be necessary to show unequal recognition of dignity as between the sexes in order to found a Charter right to dignity. Indeed the experience of persons with disabilities has often been that the dignity rights of both men and women are equally violated. It is not normal or acceptable in our society generally for a person to touch or view the genital or anal areas of a person of the opposite sex without that person's consent. While it is conceded that such practices may be unavoidable in emergency situations, basic dignity right ought to become the norm for disadvantaged persons.

    (b) Recognition of the dignity right

12. The appellant in this appeal challenges the constitutionality of, inter alia, the practices of cross gender frisk searches and of entry by female prison guards into male prisoners' quarters for routine counts and unscheduled surveillance patrols ("winds"). These practices, authorized by directives made pursuant to the Penitentiary Service Regulations, are attacked under ss. 7, 8, 12, 15, and 28. In particular, the appellant claims first, that his right to privacy is violated under ss. 7 and 8; and second, that female prisoners are treated differently thus giving rise to a violation of s. 15(1).

13. The dignity issues which arise in the case under appeal involving prisoners were analogized in the courts below to the circumstances of "those who have been committed to mental hospitals" (per Strayer, J. at p. 296) and "a hospital setting" (per Marceau, J. at p. 392).

14. This Court's determination on this issue may have a profound impact on many persons with disabilities, particularly those who are

    1. in custodial settings whether on involuntary admission (e.g., to psychiatric facilities) or voluntarily because of physical needs (e.g., long-term care institutions), or

    2. dependent on attendant care for basic physical needs such as dressing, washing and toileting.

    While disabled people recognize that, to some extent, intrusions on their persons must be endured because of physical needs caused by the nature or extent of their disabilities, it is a matter of great concern to them that those intrusions be carried out in a manner which minimizes embarrassment and invasion of privacy and which most respects their personal dignity. The right to choose one's own personal care attendant and the right to insist that an attendant performing intimate care be of the same sex as the disabled persons are important matters for both disabled men and disabled women.

15. Persons with disabilities in custodial settings, or those who are dependent upon attendant care which is tied to their housing, share with prisoners the experience of disempowerment, vulnerability and restricted liberty. For example, persons committed to psychiatric facilities are often kept in locked rooms with viewing windows and are subject to constant observation so that they do not harm themselves or others. They are also subjected to personal body searches and physical and chemical restraints. Similarly, if a disabled person dependent on attendant care requests that personal services be performed by a same sex attendant and none is available, the disabled persons is given a choice to accept an opposite sex attendant care to dress, wash and assist in toileting or not have the service. Clearly this is not a real choice for someone whose only alternative is to stay in bed unwashed and untoileted until a same sex attendant is provided. Further, in many attendant care projects a disabled persons can be evicted from his or her housing if attendant care is withdrawn or refused. These kinds of situations raise similar dignity issues to those experienced by prison inmates.

16. COPOH contends that the concept of basic dignity rights, while including the concept of privacy, involves more than, as stated by Mr. Justice Marceau at the Federal Court Trial Division at p. 393, a protection "from any interference with feelings, reactions or sensibilities … however noble, understandable and common they may be." COPOH will submit that "basic dignity" includes privacy rights related to nudity and intimate personal care such as dressing, washing and toileting.

17. COPOH has reviewed the intervention application material prepared by LEAF. COPOH agrees with LEAF that mere differential treatment of men and women does not necessarily violate s. 15(1) of the Charter and that the different social, economic and power positions as between men and women may in some cases require different treatment in order to promote true equality. The same principle applies in the context of persons with disabilities as contrasted to the rest of the population. However, COPOH takes the position that persons with disabilities have the same basic dignity rights regardless of their sex and that providing different standards of protection for those basic dignity rights as between men and women violates s. 15(1) of the Charter.

18. Persons with disabilities, particularly those who are in custodial settings and/or dependent upon attendant care, suffer social, political and legal disadvantages within our society. The incidence of physical and sexual abuse against both men and women with disabilities is significantly greater than in the general population due to their vulnerability and dependency upon their custodians and care providers. COPOH therefore recognizes that vulnerable members of society, including women, may have safety concerns about certain practices such as those at issue in this appeal. Those safety concerns are in addition to their basic dignity rights concerns.

19. COPOH will submit that the concerns raised by male prisoners to the practices at issue in this case raise only dignity concerns and not safety or vulnerability concerns and that the position of female prisoners may be different in that regard. However, this should not minimize or detract from the importance of recognizing a separate right to dignity in situations involving nudity or contact with the genital or anal areas of persons of the opposite sex. This is a basic right which should be accorded all human beings regardless of their sex.

    of the dignity right

20. Many provincial Human Rights Acts contain provisions relating to dignity rights. These are typically framed as defences to human rights complaints (e.g. blanket defences for hiring one's own personal care attendant; BFOQ defences permitting discrimination on the basis of sex because of the nature of the employment; and public decency defences for exclusion in the provision of goods and services. These sections have generally been regarded as protecting a right to choice or same sex attendant care.

21. In recent years psychiatric hospitals and attendant care projects have recognized the right to dignity in relation to personal care and intimate observation of persons with disabilities through the development of same sex attendant care policies. These policies, where possible, permit a disabled person to choose to have intimate services performed by a member of the same sex. Copies of examples of such policies are attached as Exhibit "A".

22. In those settings where security issues warrant the search of a patient, the same sex principles is generally respected. An example is a guideline governing "Searches of Patients" from the Ontario Ministry of Health Manual of Operating Guidelines for Provincial Psychiatric Hospitals, a copy of which is attached as Exhibit "B".

23. Those responsible for the administration of the custodial settings have generally attempted to strike a balance between the dignity interests of residents and the employment opportunity interests of staff members. In most cases guidelines have been developed which carefully identify the limited areas where the conflict and minimize the impact of the conflicts to the extent this is possible. Often the administration has been prepared to defend guidelines when staff have pursued their equality interests to the exclusion of the dignity interests of residents. An example of such a case is McKale v. Lamont Auxiliary Hospital (1987), 8 C.H.R.R. D/4038 in which Madame Justice Ellen Picard of the Albert Court of Queens Bench rejected a claim that a woman seeking a nursing position in a chronic care facility was discriminated against because of her gender. She accepted the argument that the request of male residents to receive intimate care from a person of the same sex warranted the hiring of a male in these particular circumstances. She stated that patients in a chronic care facility are in a position "analogous to that of a prisoner" since they are not realistically free to leave the institution. The court accepted expert testimony on the counter-therapeutic effects of ignoring a patient's request for the provision of intimate care by a member of the same sex. It concluded at page 4044 that:

    …the claim by a patient in an auxiliary hospital for intimate, personal care to be given by a nursing attendant of the same sex has a basis in this contract with the institution, in public expectations and is reasonable in the opinion of experts based on their research and experience in the area. The claim must, so far as possible, be met by the respondent…to fulfill its obligations to the patient to treat him with respect and dignity.

24. Similarly, those responsible for the administration of custodial settings have attempted in many cases, to respond to the demographic realities of increased utilization of nurses and nursing assistants to provide intimate personal care for male as well as female patients. Where insufficient male nursing staff has been available, hospitals have applied to human rights commissions for authority to hire male staff. Marked as Exhibit "C" to my affidavit is an exchange of correspondence between Forest Hill Rehabilitation Centre, and the New Brunswick Human Rights Commission, together with the resulting "Bona fide Occupational Qualification Certificate" ("BFOQ Certificate") and newspaper advertisement.

25. Not all provinces have the authority to grant BFOQ Certificates. In Ontario for example, K. Wing, a chronic care facility operated by the Sunnybrook Medical Centre under terms of an agreement with the Department of Veterans Affairs ("DVA"), was phasing out male orderlies and replacing them with nursing assistants, the vast majority of whom were female. One of the many who objected, James Gustilov, filed a complaint with the Ontario Human Rights Commission. Following the complaint, the policy was changed and advertisement were placed for male nursing assistants with no guarantee that the Medical Centre or the DVA would not thereafter be subjected to human rights or Charter complaints from female nursing applicants. Thereafter, Mr. Gustilov was assured his non-emergency personal care would be provided by a male staff person.

26. Two trends have emerged recently which threaten to undermine the same sex principle and subordinate the dignity interests of persons with disabilities in custodial settings to other priorities:

    1. the same-sex principles has been challenged in the interests of assuring equality of opportunity for the persons employed in these settings; and

    2. (expanding areas of professional jurisdiction and increasing professional qualifications to provide certain types of care have resulted in nurses and nursing assistants, who are overwhelmingly female, replacing orderlies and other non-professionals who tended to be males.

27. COPOH believes that the dignity rights of persons with disabilities in custodial care settings should not be dependent upon the good will and willingness to risk litigation of those responsible for their administration. While COPOH recognizes the legitimate claims to equal opportunity in employment being advanced by women, it also believes persons with disabilities should be able to independently exercise dignity rights protected by the Charter.

28. COPOH is concerned that the limited protections now available in human rights legislation may not be recognized in Charter claims and, worse, that the existing protections in human rights legislation could be found to be inconsistent with the Charter. The result would be devastating to many persons with disabilities who have only in recent years been successful in achieving respect for their personal dignity and their right to have some control over how their personal needs are met.

    (2) The Section 15(2) Issue

29. Disabled people are among the most disadvantaged groups in our society. As such, they are the beneficiaries of many social programs, including employment programs, which have been developed by governments to alleviate their disadvantagement. COPOH does not, therefore, seek to undermine protections in the Charter which protect equality enhancing programs from attacks by individuals or groups who are in positions of relative advantage but who object to their exclusion from such programs on the grounds of so-called "reverse discrimination".

30. It must be recognized however, that equality enhancing programs may have effects on the Charter rights of others in situations other than "reverse discrimination". An affirmative action program which results in a violation of s. 15 rights of other disadvantaged persons is an example of such a situation. COPOH will submit that s. 15(2) applies only to protect social programs from "reverse discrimination" attacks.

    Other conflicts between competing Charter rights are more appropriately dealt with under s.1 of the Charter where balancing of competing Charter interests is possible. If s. 15(2) of the Charter immunizes all social programs from s. 25(1) challenges, then a large proportion of government activity is completely immunized from Charter scrutiny. For example, s. 15(2) ought not to shield an affirmative action program to hire disabled men from a s. 15(1) attack by disabled women although it should be protected from such an attack by non-disabled persons. COPOH believes that if s. 15(2) is interpreted as shielding all social programs from all equality rights challenges, the result may well be to deepen the disadvantage of many persons with disabilities.

    E. LEGAL ARGUMENT IF LEAVE TO INTERVENE IS GRANTED

    The Constitutional Right to Personal Dignity Under Section 7

31. COPOH will submit that the right to choose who will assist oneself in dressing, bathing and toileting ("basic dignity") and the right to privacy in relation to personal dignity is a basic right accorded to all human beings and protected as part of "security of the person" under s. 7 of the Charter. COPOH submits that on the facts of the case on appeal, a s. 7 argument can be made in respect of the "winds" because the "winds" are not "searches" under s. 8.

32. The right to privacy and the right to have one's dignity respected have been recognized by this Court in cases involving s. 8, search and seizure (Hunter v. Southam Inc. (1984) 14 C.C.C. (3d) 97), freedom of speech, s.2(b) (R. v. Keegstra, [1990] 3 S.C.R. 697 at p. 764), freedom of conscience and religion, ss. 2(a) and 1 (R. v. Big M Drug Mart Ltd. (1985), 18 D.L.R. (4^th) 321), and the guarantee of equality s. 15 (R. v. Morgantaler (No. 2) (1988), [1988] 1 S.C.R. 30). It will be submitted that it is consistent with this line of case law to recognize basic dignity rights as a component of "security of the person" under s. 7 of the Charter.

33. While this Court has not yet dealt with basic dignity rights of persons with disabilities there are decisions of this Court and other courts which do consider dignity rights. For example, in Fleming v. Reid (1991), 4 O.R. (3d) 74 the Ontario Court of Appeal held that disregarding the instructions of a psychiatric patient given while competent constituted a violation of the patient's security of the person under s. 7. The Court of Appeal stated at p. 88,

    The common law right to bodily integrity and personal autonomy is so entrenched in the traditions of our law as to be ranked as fundamental and deserving of the highest order of protection. This right forms an essential part of an individual's security of the person and must be included in the liberty interests protected by s. 7. Indeed, in my view, the common law right to determine what shall be done with one's own body and the constitutional right to security of the person, both of which are founded on the belief in the dignity and autonomy of each individual, can be treated as co-extensive.

34. Similarly, in Malette v. Schulman (1990), 72 O.R. (2d) 417, 67 D.L.R. (4^th) 321 (C.A.), the plaintiff, a Jehovah's Witness, was held to have a right to refuse blood infusions. The Ontario Court of Appeal held that any non-consensual touching which is harmful or offensive to a person's reasonable sense of dignity was actionable and found the defendant doctor who gave the unauthorized blood transfusion liable for the tort of battery despite this case being an emergency situation. The Court stated at page 432 stated that:

    The right to determine what shall be done with one's own body is a fundamental right in our society. The concepts inherent in this right are the bedrock upon which the principles of self-determination and individual autonomy are based.

35. COPOH submits that the same principles regarding consent that apply in the context of medical treatment apply with respect to personal dignity (dressing, bathing and toileting). A non-consensual touching or observation of nudity should similarly be found to violate this "fundamental right in our society" in the context of prison inmates, psychiatric patients and disabled persons dependant on attendant care. Such practices could only be justified if the s. 1 reasonable limit test is met.

    (2) Section 15 of the Charter

    (a) Inequality of treatment as Between Male and Female Prisoners

36. This Court recognized in the Andrews case that not all distinctions will be discriminatory under s. 15 of the Charter but that distinctions based upon stereotypes or generalization are likely to be discriminatory. To the extent that differential standards in the recognition of dignity rights based on stereotypical ideas that men are, or should be, less concerned about basic dignity, then this kind of generalization which is offensive under the Charter. COPOH will submit that distinctions drawn between men and women as to the extent to which their dignity rights will be observed, violate s. 15 of the Charter.

37. Further, this Court has already held in Brooks v. Canada Safeway, [1989] 1 S.C.R. 1219 that underinclusions may be simply a backhanded way of permitting discrimination. Once a benefit is provided, exclusions from it on prohibited grounds of discrimination violate human rights protections. Similarly, COPOH will argue that once recognition and protection of dignity rights is granted to women it is discriminatory to exclude men from such protection.

    (b) Adverse impact discrimination

38. Persons with disabilities in custodial settings or dependent upon attendant care are in a similar position to prisoners in terms of the degree to which their basic dignity is regarded. As a group they experience social, political and legal disadvantagement analogous to that experienced by the categories of persons protected under s. 15(1) of the Charter. The norm in our society is to closely protect the basic dignity of non-disabled persons and those whose liberty is not restrained. The general population takes as a given that their toileting will be done privately, that public washrooms will be restricted to persons of the same sex and that dressing rooms in clothing stores and recreational facilities will likewise be unisex. Persons with disabilities, however, are often compelled to accept personal care of the most intimate nature from persons of the opposite sex. This lack of protection for the dignity rights of disabled persons in custodial or dependent situations can itself be seen as having a discriminatory impact contrary to s. 15 of the Charter.

    3. Section 15(2) of the Charter

39. Where Charter rights of prisoners to dignity and security of their persons conflict with the Charter right of female employees to equality of opportunity, it is necessary to balance the competing interests involved under s. 1 rather than having one set of rights override the other by virtue of s. 15(2). The balancing of interests under s. 1 gives no procedural advantage to the party seeking to use the Charter as a sword rather than a shield.

40. COPOH will argue that s. 15(2) of the Charter is irrelevant on the facts of this case. Regardless of whether the female prison guards were hired through an affirmative action plan or otherwise, the same dignity issues and the same conflict between respecting those dignity issues while at the same time providing equal employment opportunity to women exists. The fact that the female guards in question happen to have been hired on an affirmative action plan is essentially irrelevant to the resolution of these issues. Accordingly, s. 15(2) has no application.

41. Further, as a question of law, COPOH will submit that a proper and purposive interpretation of s. 15(2) would not permit its application to immunize employment equity programs other than in situations of "reverse discrimination". The purpose of s. 15(2) is to ensure that members of advantaged groups cannot use the Charter to strike down remedial programs from which they are excluded because of their relative postion of advantagement.

42. Vitaully all social programs and positive legislation are in some way designed to benefit persons who are disadvantaged. If the respondent is correct that s. 15(2) insulates this affirmative action program for the employment of women from any attack under the Charter, then it follows that every government program of social benefit aimed at ameliorating discrimination on the basis of sex, race or disability would be likewise immunized from challenge. For example, government programs such as unemployment insurance could have restrictions based on sex or race or affirmative action programs to hire visible minorities could be restricted to men. Furthermore, exemptions from affirmative action programs in employment for a BFOQ under Human rights legislation could be rendered unconstitutional under the application of this over-broad interpretation of s. 15(2). Exempting all such programs from scrutiny is inconsistent with the purpose of the Charter and human rights legislation.

    D. CONCLUSION

43. The issues raised in this case are complex and of fundamental importance to persons with disabilities. Because of their experiences and the different nature of the impact of dignity rights on their lives, disabled people bring a completely different perspective to these issues. It is important to hear and consider that perspective before decisions are made that will potentially have a profound impact on the daily lives of many persons with disabilities. COPOH therefore respectfully asks this Court for the opportunity of presenting a disability perspective on these issues before they are finally determined.