Integrated Case Factum

A. The Interveners

B. Persons with Disabilities in Canada: The Context for Analysis

A. Conducting the Section 15 Analysis

B. Issue I: Is There a Violation of section 15 of the Charter?

C. Is the s. 15 Infringement Justified Under s.1 of the Charter?

PART I: STATEMENT OF FACTS

A. The Interveners

1. On 17 March 2004, the Canadian Association of Community Living ("CACL") and the Council of Canadians with Disabilities ("CCD") were jointly granted leave to intervene in this appeal.

2. The CACL is a national, voluntary not for profit organization committed to defending the rights of and advocating for the interests of persons with intellectual disabilities. The CACL has 10 provincial and 3 territorial associations, 420 local associations and over 40,000 members. The CACL's core values are: (a) that each individual has inherent dignity and worth and is entitled to equal access and opportunity to the supports and services that enable full participation in society; (b) that persons with intellectual disabilities have the rights to self determination and autonomy which are fundamental to full citizenship; and (c) that social inclusion and community living are crucial to ensure that persons with disabilities can reach their full potential as equal citizens and contribute to society.

3. The CCD is a national, not for profit umbrella organization representing people with a variety of disabilities. The CCD consists of 8 provincial member groups, and 7 national disability organizations, and is accountable to a membership of several hundred thousand Canadians with disabilities. The CCD's mandate is to create a voice for Canadians with disabilities and to promote full participation of and equal opportunity for persons with disabilities in Canadian society. The CCD is informed in its work by the principles of access, equality, citizenship, inclusion, independent living, empowerment, self representation, self determination, consumer control and self management.

4. The Interveners take no position on the merits of the particular treatment at issue in this case. The Interveners support individual and family autonomy in the choice of disability-related supports, services and ameliorative measures geared to the individual needs of persons with disabilities. For there to be meaningful choice, such supports must be available within the framework of all governmental programs, including the health care system.

   B. Persons with Disabilities in Canada: The Context for Analysis

5. Persons with disabilities represent a significant percentage of Canada's population. In 2001, 12.4% of the population in Canada (equivalent to the population of British Columbia) reported having some degree of physical or mental disability.

   Canada, Statistics Canada, Canadian Social Trends (Spring 2004), No. 72 (Ottawa: Ministry of Industry, 2004) at 15

6. In 2001, about 26,000 or 2% of pre-school age children had a disability. About 155,000 or 4% of school age children have a disability; of these almost half ( 43%) experience severe disabilities. Learning disabilities and chronic health conditions, including autism, are the two most common forms of disability among school aged children.

   Statistics Canada, Canadian Social Trends, supra at 15

7. Families raising children with disabilities face particular hardships, including financial hardship, 'time poverty' and social isolation. Parents of children with disabilities report that caring for a child with a disability affects their availability to work, requiring them to work fewer hours, forego promotions, and adjust work schedules around their child's needs. In particular, 71% of mothers experience a negative impact on their employment. Having a child with a disability almost doubles a family's risk of living in poverty. In addition, 40% of parents of pre school children with disabilities need, but do not have, additional support to carry out basic family responsibilities, and to have time off to rest and engage in personal activities. Cost is the main reason they lack the help they need.

   Canada, Statistics Canada, Children with Disabilities and Their Families (Ottawa: Ministry of Industry, 2003) at 8-16

8. Despite some progress over the past two decades, institutionalization remains a serious concern for persons with intellectual and mental health disabilities in Canada. Without supports for community living, persons with intellectual disabilities are often compelled to enter group home programs and other institutions created solely for the purpose of warehousing persons with intellectual disabilities.

   *** add cite

9. The Romanow Commission (relied upon by the Attorney General of Ontario in his factum) observed that Canada's diversity should be reflected in our health care system. The Commission expressly urged that Canada's health care system be sensitive to the varying needs of its diverse population, including persons with disabilities who experience "their own unique challenges in accessing health services." The Commission recognized the importance of home care services in preventing institutionalization and promoting the independence of persons with disabilities. In particular, the Commission recommended that immediate steps be taken to provide support for home-based mental health care management because current support levels have "too frequently fallen short".

   Commission on the Future of Health Care in Canada, "Building on Values: The Future of Health Care in Canada" (Final Report Nov. 2002) at xxx xxxii and ch. 8, p. 179

10. In 1998, the federal, provincial and territorial Ministers of Social Services released a joint report entitled In Unison: A Canadian Approach to Disability Issues. It was the first collaborative government work to document disability issues and to establish mutually agreed-upon national guidelines for future policy reform. The report confirmed the persistent social and economic disadvantage faced by persons with disabilities in Canada as a consequence of barriers to employment, income security and disability supports. The report further recognized that providing adequate disability-related supports is essential for the participation of persons with disabilities in Canadian society.

    In Unison: A Canadian Approach to Disability Issues (Ottawa: Human Resources Development Canada, 1998) at 5, 7-9, 19

11. In 2000, a second report, In Unison: Persons with Disabilities in Canada established a framework for a national consensus on disability issues. With respect to children with disabilities, In Unison: 2000 noted that "[d]isability supports provided to children at an early age can promote optimal development and reduce the need for more intensive supports at a later stage." This report concluded that disability supports are "a key building block for full inclusion."

    Disability supports are goods and services that assist people with disabilities in overcoming barriers to participating fully in daily living, including economic and social activities...Disability supports are tools for inclusion. They are critical if people with disabilities are going to lead fulfilling lives and participate fully in their communities. Without them, many people with disabilities are not able to fulfil their social and economic potential.

    In Unison 2000: Persons with Disabilities in Canada (Ottawa: Human Resources Development Canada, 2000) at ***

12. Accessing disability aids, supports and services which are necessary to maximize independence and inclusion in society remains a challenge for persons with disabilities. Recent statistics reveal that the more severe the disability, the more likely those persons requiring the specialized support have unmet needs. Roughly half of children with disabilities who require specialized supports do not have all the supports they require and 55% of them report that cost is a barrier to acquiring such supports.

    Statistics Canada, Canadian Social Trends, supra at 15-16
    Statistics Canada, Children With Disabilities and Their Families, supra at 10
    Canada, Statistics Canada, Disability Supports in Canada, 2001 (Ottawa: Ministry of Industry 2003) at 6

13. In recent years awareness has increased regarding the physical, social, cultural, political and economic discrimination experienced by children with intellectual disabilities. Some of the factors that contribute to the disadvantaged status of children with disabilities include: living in low income families because of the care giving responsibilities, the increased medical costs necessarily associated with having a disability, transportation costs, and social isolation, particularly as a result of being forced to attend segregated schools or classrooms. Children with disabilities also experience significant systemic barriers in health care systems, including the lack of adequate planning and coordination of supports, and rationing of health care. There is grave concern that children with disabilities are systemically denied opportunities and services available to non disabled children because of assumptions regarding the value of benefits to children with disabilities and the negative attitude that children with disabilities are less worthy of investment. This problematic approach perpetuates the idea that disability is inherent to the individual, rather than a product of the social, political and cultural environments.

    A World Fit for All Children: Including the Rights of Children with Disabilities in the UN Convention on the Rights of the Child National Plans of Action (March 2003) Canadian Association of Community Living and Inclusion International

    PART II: POSITION OF THE INTERVENERS ON THE ISSUES ON APPEAL

14. At its core, this case is about whether and on what basis legally-mandated and publicly-funded systems of social support, including the health care system, may deny necessary disability related benefits to persons with disabilities.

15. The CACL and the CCD submit that, where a government provides benefits and services, it must do so in a manner that respects the equality rights of persons with disabilities. The CACL and the CCD submit that in the context of an existing statutory framework and its administration, a denial of a disability related benefit, service, support or ameliorative mechanism which promotes social inclusion, equal citizenship and participation for persons with disabilities violates the s.15 right to equality because it perpetuates systemic discrimination against persons with disabilities, isolates and marginalizes them, diminishes their capacity for full citizenship, and accordingly strikes at the very heart of their human dignity, understood in the sense of their personal autonomy, right to self-determination, self-worth and self-respect.

16. As a result of the findings of the lower court, this case is located within the framework of the Medicare Protection Act, although it is noteworthy that in the courts below and in this court the respondent parents took the position that the government has a Charter-based obligation to fund the treatment they seek for their children irrespective of any particular statutory framework. The trial judge explicitly noted that the government was free to deal with its Charter obligations to these children through ministries other than the Ministry of Health if it saw fit.

17. In supporting the position of the respondents in this case, the Interveners rely on the following findings of fact from the court below:

    1. The Medicare Protection Act establishes a framework to provide publicly funded medical services based on the principle of universality. The Medicare Protection Act is designed to assist people with health care needs through a publicly funded health care system, in order to promote health, and the prevention and treatment of illness and disease.
       
       
    2. The Medicare Protection Act provides no benefits to the claimants for the treatment of autism.
       
       
    3. The respondent parents want the treatment at issue for their children.

    B.C. Supreme Court, Reasons for Judgment (26 July 2000), Appeal Book, Vol. 1 at 89-90, para. 53-54 and at 116, para. 126 [hereinafter "Decision of Allan J."]
    B.C. Court of Appeal, Reasons for Judgment (9 October 2002), Appeal Book, Vol. 1 at 183-186, para. 28 [hereinafter "Court of Appeal Decision"]

18. The Appellants acknowledge that the Medicare Protection Act is broad enough in scope to encompass the treatment sought for the autistic children in this case, and that the treatment is not available under the Act because the government has chosen not to "prescribe" it .

    Factum of the Appellants, paras. 41, 57-58

19. The CACL and the CCD submit that the Appellants' analysis of equality for persons with disabilities is rooted in the formal equality model that has previously and consistently been rejected by this Court. The Appellants repeatedly characterize the equality claims of persons with disabilities as illegitimate claims for something "extra". If this flawed paradigm prevails, it would entrench the exclusion of persons with disabilities. Section 15 analysis would return to the static and formal vision of equality rejected in Andrews. That regressive vision would do two things. First, it would place persons with disabilities outside the core human community that is viewed as normal and deserving. Second, it would also return to the "thin and impoverished" notion of accommodation that allows for only marginal, after the fact modifications to legal structures and fails to identify and scrutinize the systemic discrimination embedded in mainstream structures that causes persons with disabilities to be excluded.

20. In support of their position, the CACL and the CCD draw on this Court's jurisprudence which has repeatedly recognized that discrimination arises because social structures and laws have been constructed in a way that excludes persons with disabilities and that the objective of s. 15 in relation to persons with disabilities is to transform mainstream laws and structures to accommodate their differences, so as to ensure full participation in society.

    Eaton v. Brant County Board of Education, [1997] 1 S.C.R 241 at para. 66-67
    Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 65
    Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, [2003] 2 S.C.R. 504 at para. 89, 93

21. The CACL and the CCD submit that issues of the cost of benefits and the allocation of limited resources cannot be considered under s.15 of the Charter and are relevant, if at all, only under s.1. With respect to s.1, the Interveners urge upon the Court great caution in considering cost arguments as a justification for the denial of benefits to persons with disabilities. Indeed, the CACL and the CCD take the position that reliance on the costs of providing governmental service to persons with disabilities simply perpetuates the discriminatory notion that spending on persons with disabilities is a "frill" with limited social utility. It is submitted that a denial of benefits contrary to s.15 cannot be justified on the basis of cost.

    PART III: LAW AND ARGUMENT

    A. Conducting the Section 15 Analysis

    1. Interpretive Principles

22. At the outset, it is important to emphasize the following well established principles of s.15 analysis. First, parliament, legislatures and courts each have an independent obligation to ensure that all legislation conforms to the Charter, including statutes that deal with complex social programs or that involve complex decision making. This Court has previously confirmed that both laws and government policies dealing with health care are subject to Charter scrutiny.

    Symes v. Canada, [1993] 4 S.C.R. 695 at 753
    Eldridge v. British Columbia (Attorney General), supra

23. Second, regardless of whether or not the Legislature has to enact any particular benefit program, where it does enter the field, it must provide the benefit and protection of the law on a non discriminatory basis. As this Honourable Court has recognized on many occasions, "underinclusion may be simply a backhanded way of permitting discrimination."

    Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219 at 1238 1240
    Vriend v. Alberta, [1998] 1 S.C.R. 493 at para. 80
    Battlefords and District Co-operative v. Gibbs, [1996] 3 S.C.R. 566 at para. 27

24. Third, in some of its most important statements of human rights principles for persons with disabilities, this Court has expressly recognized the crucial connection between equality, the duty to accommodate, and the integration and full participation of persons with disabilities. As early as its first equality rights judgment, this Court noted that the "accommodation of differences is the essence of true equality." In its most recent disability decision, this Court affirmed that the rationale underlying the prohibition of disability discrimination is to allow, through accommodation, the recognition of the actual needs of individuals and their actual capacities in many different social contexts.

    Eaton v. Brant County Board of Education, supra at para. 66, citing Andrews
    Eldridge v. British Columbia (Attorney General), supra at para. 65
    Nova Scotia (Workers' Compensation Board) v. Martin, supra at para. 93
    British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. [1999] 3 S.C.R. 3 at para. 39-42, esp. para. 41 [hereinafter "Meiorin"]
    British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para. 18-22 [hereinafter "Grismer"]
    [Mercier, here and elsewhere?]

25. Fourth, to ensure that a claimant is given full benefit of the Charter's protection, this Court has emphasized that it is critical to maintain a strict analytical distinction between s.15 and s.1. The scope of equality rights must not be narrowed by shifting considerations of government purpose and balancing of competing interests into a question of whether there is a s.15 breach. At the s.15 stage, no deference is owed to the Legislature. Any analysis with respect to financial costs, limited resources, the complex nature of decision making, the need to balance different societal interests and any need to introduce social programs in an incremental way, must be carried out only under the s. 1 analysis where the onus for justification lies upon the government to show that the otherwise demonstrated discrimination is justified by law in a free and democratic society.

    Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 178
    Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 at para. 81
    Lavoie v. Canada, [2002] 1 S.C.R. 768 at para. ***
    Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, per Binnie J. at para. 74 (dissenting)

26. Last, as with all Charter rights, the scope of the right to equality must be given a broad and liberal interpretation. In interpreting s.15, courts must adopt a stance that "encourages legislative advances in the protection of human rights". This requires that full consideration be given to the two inextricably intertwined purposes of s.15: (a) the foundational principle that s. 15 is aimed at "the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration"; and (b) the remedial objective "to rectify and prevent discrimination against particular groups suffering social, political and legal disadvantage in society."

    Law v. Canada, supra at para. 47 and 51

27. Operating together, these twinned purposes recognize that the fundamental objective of s. 15 is to secure substantive equality. Substantive equality has a particular resonance for persons with disabilities because of the history of exclusion they have experienced and continue to experience. To both promote equality and to rectify and prevent discrimination, substantive equality requires that accommodation for persons with disabilities be built into the design of laws and the way they are administered, not simply that laws or administrative practices be modified incrementally after the fact.

    Grismer, supra at para. 22

    2. Substantive Equality for Persons with Disabilities

28. This Honourable Court has long recognized that persons with disabilities are among the most disadvantaged groups in Canada. This Court has described the history of persons with disabilities in Canada as largely

    ... one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions.

    Eldridge v. British Columbia (Attorney General), supra at para. 56

29. This Court has recognized that the discrimination experienced by persons with disabilities arises from socially constructed barriers:

    Exclusion from the mainstream of society results from the construction of a society based solely on 'mainstream' attributes to which disabled persons will never be able to gain access. … it is the failure to make reasonable accommodation, to fine tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. … It may be seen … as a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. It is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability.

    Eaton v. Brant County Board of Education, supra at para. 67

    Exclusion and marginalization are generally not created by the individual with disabilities but are created by the economic and social environment and, unfortunately, by the state itself. Problematic responses include, in the case of government action, legislation which discriminates in its effect against persons with disabilities, and thoughtless administrative oversight.

    Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703 at para. 30

30. The accommodation of individuals' differences in the design and implementation of legal structures is the crux of substantive equality. At its foundation, substantive equality accepts that equality does not mean treating all individuals the same. Substantive equality accepts that individuals and groups of individuals require different kinds of supports to facilitate their participation - their full citizenship - in society.

31. Ultimately, this means that when applying s.15, the question of whether or not there is differential treatment, whether the difference is based upon an enumerated or analogous ground, or whether the differential treatment is substantively discriminatory must be measured not simply within the four corners of the legislation under review but in the broader social context and with reference to the principles of substantive equality.

32. Substantive equality is an inherently transformative concept. This means that at both an analytical and remedial level, equality analysis cannot accept mainstream social relations, laws and structures as the benchmark for what constitutes equality. An uncritical acceptance of the mainstream as the measure of what constitutes equality can only serve to entrench relations of oppression and exclusion, to hide real experiences of discrimination, and to continue a formal model of equality in which persons with disabilities are forced to sink or swim depending on whether they can make themselves conform to able bodied norms. As set out below, this has implications for all three stages of the s.15 inquiry.

    Charter's Guarantee of Equality to Persons with Disabilities after 10 Years - What Progress? What Prospects? (1997) 7 N.J.C.L. 263 at ***
    Dianne Pothier, "Eldridge v. British Columbia (Attorney General): How the Deaf Were Heard in the Supreme Court of Canada" (1998), 9 N.J.C.L. 263 at 271-2

    3. International Instruments

33. This contextual and transformative vision of substantive equality for persons with disabilities is enshrined in international conventions and covenants which Canada has ratified. In these international human rights instruments, Canada has committed itself to equality for persons with disabilities based on principles including: (a) inherent dignity; (b) social inclusion and community living; (c) the right to participate fully in society; (d) the right to supportive measures to enable the greatest degree of self reliance; (e) the right to medical, social, educational and other services to develop their capabilities and skills and to hasten social integration; and (f) the right to have their individual needs taken into consideration at all stages of economic and social planning.

    United Nations, Universal Declaration of Human Rights, Art. 7, 25
    United Nations, International Covenant on Economic, Social and Cultural Rights, Art. 12
    United Nations, Declaration on the Rights of Disabled Persons, Art. 3, 5 10
    United Nations General Assembly, Standard Rules on the Equalization of Opportunities for Persons with Disabilities, A/RES/48/96, 85th Plenary Meeting (20 December 1993), Introduction para. 15, Rules 2, 4 and 14

34. In particular, in the Convention on the Rights of the Child Canada has ratified the principles that: (a) a mentally or physically disabled child is entitled to enjoy a full and decent life in conditions which ensure dignity, promote self reliance and facilitate active participation in the community; (b) a child has the right to enjoy the highest attainable standard of health; (c) a disabled child has the right to special care appropriate to the child's condition, subject to available resources, free of charge; and (d) care for a disabled child shall be designed to ensure the child has effective access to education, training, health care services, rehabilitation services, preparation for employment and recreation opportunities in a manner conducive to the child's achieving the fullest possible social integration and individual development.

    United Nations, Convention on the Rights of the Child, Art. 23, 24

35. These international human rights obligations are a "relevant and persuasive factor" in Charter interpretation and their content is an important indicator of the meaning of the "full benefit of the Charter's protection". These obligations should inform the interpretation of both the content of the rights guaranteed by the Charter and also what can constitute a pressing and substantial objective under s. 1. This Court has repeatedly stated that "the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified."

    Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 at para. 23
    United States v. Burns, [2001] 1 S.C.R. 283 at para. 79 81
    R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 175 177
    Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at para. 69 70

    B. Issue I: Is There a Violation of section 15 of the Charter?

    1. Introduction: Comparative Analysis For Persons with Disabilities

36. From the perspective of persons with disabilities, the CACL and the CCD submit that s.15 mandates that any inquiry into whether differential treatment is qualitatively discriminatory must be conducted in light of the principles of social inclusion, self determination, full citizenship and participation. The objective of a s.15 inquiry is not to compare disadvantaged persons with each other, but to consider the discriminatory effects and impact of the challenged law on the claimants.

37. In conducting the s.15 inquiry, courts must be vigilant against a comparator group approach that pits persons with disabilities against one another, forcing them to assume the posture of being the most marginalized or most "tragic" before they can benefit from the right to equality. As noted by this court in Nova Scotia (Workers' Compensation Board) v. Martin, comparing the benefits accorded one group of persons with disabilities with those accorded another simply perpetuates the "race to the bottom". This kind of comparison is in itself demeaning and dehumanizing and obscures the real experiences of discrimination.

    Nova Scotia (Workers' Compensation Board) v. Martin, supra at para. 88

38. The focus on identifying and comparing groups also poses particular risks for persons with disabilities. There is an infinite range of disabilities, and the structural comparison problem is exacerbated when the statutory framework at issue - like the workers compensation statute in Nova Scotia (Workers Compensation Board) v. Martin and the health insurance statute at issue in this case - by its very design addresses a range of different disabilities.

    Nova Scotia (Workers' Compensation Board) v. Martin, supra at para. 81

39. Mainstream social relations, laws and structures must not be accepted as the benchmark for what constitutes equality because by definition they have been constructed without taking into account the perspectives, needs, capacities and aspirations of persons with disabilities.

    supra at ***
    Pothier, "How the Deaf Were Heard", supra at ***

40. Reliance upon external comparator groups perpetuates the bias inherent in mainstream social structures and can serve as a vehicle to impose community prejudices upon persons with disabilities. Any comparator that is selected accepts, as a given, the terms on which the statutory scheme has been designed; it preserves the mainstream model as the benchmark for equality without consulting the principles of substantive equality which lie at the core of s. 15. Such a comparison does not enable the Court to examine whether, in a substantive sense, the legislation has been designed to accommodate, as far as possible, the needs of the disadvantaged group. A strict reliance on identifying external comparator groups simply recreates the "similarly situated test" that was rejected by this Court in Andrews.

    Law v. Canada, supra at para. 61

41. The key question for s.15 analysis for persons with disabilities cannot be: did the disadvantaged group at issue get what some other group got? The key question must be: did they get what they need, on the basis of their disability, to facilitate and enhance their equal inclusion and participation in society? If the program at issue fails to deliver that benefit, then the onus shifts to government to try to justify that failure under s.1.

42. Fortunately, this Court has already given strong support for just such a substantive approach in the context of statutory human rights claims. In Brooks v. Canada Safeway, for example, this court rejected the formalistic argument previously accepted in Bliss v. Attorney General of Canada that denial of health benefits to employees who were absent from work due to pregnancy and childbirth did not discriminate on the basis of sex because no employee, regardless of sex, was eligible for benefits when absent from work due to pregnancy and childbirth. The denial of a benefit to a comparator group that does not need that benefit cannot shield the government from a claim of discrimination by persons who do need that benefit and are denied it on enumerated or analogous grounds.

    Brooks v. Canada Safeway Ltd, supra at 1241-1249
    Vriend v. Alberta, supra at para. 77-84

43. Likewise in Meiorin and Grismer, this Court clearly articulated the principle that in identifying discrimination, it is appropriate to conduct the analysis with reference to the ground of discrimination rather than some specially selected comparator group. This approach best fulfills the strong remedial component of s. 15 by ensuring that social inclusion is built into the design of a law so that it best reflects the needs, capacities, and circumstances of all who will be affected by the law.

    Meiorin, supra at para. 39-42
    Grismer, supra at para. 18-22

44. This is the approach taken by the lower courts in this case. As noted by the trial judge:

    It is of little assistance to reassure people suffering from debilitating illnesses that although the state will not provide treatment for that illness, should they break a leg or develop pneumonia, they will be treated for those conditions.

    Decision of Allan J., Appeal Book Vol. 1 at 119-120, para. 135

45. The CACL and the CCD submit that this Honourable Court should take a similar approach that focuses on the needs of the disadvantaged group in identifying the treatment, service or support that is necessary in order to actualize equality.

    2. Conducting a Substantive Comparative Analysis under s. 15(1) for Persons with Disabilities

46. In Law v. Canada, this Honourable Court established a detailed framework for conducting a s.15 equality rights analysis. It focuses on three central inquiries to ascertain whether the impugned law constitutes substantive discrimination: (a) whether a law imposes differential treatment between the disadvantaged group and others in purpose or effect; (b) whether one or more enumerated or analogous grounds of discrimination are the basis for the differential treatment; and (c) whether the law in question has a purpose or effect that is discriminatory within the meaning of the equality guarantee.

    Law v. Canada, supra at para. 88

    a. Step 1: There is Differential Treatment

47. In the present case, a statutory framework has been established to provide publicly funded medical services and supports to all persons, including persons with disabilities. However, children with autism are excluded from this statutory framework in that they are denied publicly funded support for treatment of autism.The wholesale exclusion of treatment for autism from the statutory program is per se differential treatment. To state, as the Appellants have, that there is no differential treatment because the respondents are seeking "an extra service, not presently funded under the Medicare Protection Act," misses the key point at this stage of the analysis. Under the Act, the children in this case are in fact denied services in relation to their specific disability, which is the very essence of differential treatment.

    Vriend v. Alberta, supra at para. 77-84
    Nova Scotia (Workers' Compensation Board) v. Martin, supra at para. 71, 92-99

    b. Step 2: Differential Treatment is Based on Mental Disability

48. The lower courts found that the differential treatment in the present case arises on the basis of the enumerated ground of mental disability. While they have access to other generic medical services that are presently prescribed under the Act, the lower courts found that they are denied the services that they specifically need in relation to their autism. The CACL and the CCD submit that since these children are excluded from coverage under the statute for the treatment of autism, their exclusion is on the basis of their disability. Once the basis of their differential treatment/exclusion is identified, it is not necessary or helpful to focus on the treatment of some external comparator group that does not require health services in relation to autism.

    c. Step 3: The Differential Treatment is Discriminatory

49. The CACL and the CCD recognize that not every denial of a possible support, benefit or service in relation to disability will give rise to a violation of s. 15 of the Charter. While it is not necessary or indeed wise in the context of this case to determine the outside parameters of what denials violate s. 15, at the very least where the nature of the benefit at stake is one that will promote and enable social inclusion and participation for persons with disabilities, the denial of the benefit has constitutional implications. At this stage in the Charter analysis, the court should be concerned only with the impact of the denial upon the disadvantaged group at issue. Any concerns with respect to cost, allocation of limited resources, competing interests, phasing in implementation, and so on, are to be addressed only under s. 1 and not at the s. 15 stage.

50. Based on the findings of fact in the courts below, the differential treatment in the present case is discriminatory because:

    1. it reinforces existing marginalization and exclusion for children with autism by denying benefits which, if provided, may lead to more effective participation in other areas of social engagement and participation;
       
       
    2. it excludes children with autism based on a stereotypical assumption about their quality of life and potential to engage in and contribute to society;
       
       
    3. it fails to build in accommodation for children with autism by denying them any treatment for autism;
       
       
    4. it fails to provide an individualized assessment of the supports or services that are needed by children with autism; and
       
       
    5. it has material impacts, both in terms of social isolation and financial cost , which impose an enormous and prejudicial burden on children with autism;

51. The CACL and the CCD submit that in addressing this third step of the Law test, the Appellants have failed to apply the appropriate contextual factors in a manner consistent with the overall purpose of section 15. Further, the Appellants erroneously invoke factors that are more properly considerations under section 1.

    C. Is the s. 15 Infringement Justified Under s.1 of the Charter?

52. If this Honourable Court determines that there is a violation of s.15 in this case, the CACL and the CCD submit that this court must conclude that the violation cannot be justified under s. 1.

53. To justify a limit on constitutionally protected rights, two criteria must be satisfied. First, the objective of the law must be pressing and substantial. Second, the means used to achieve the objective must be rationally connected to the objective; the limit must be the least rights-impairing means to achieve the objective; and the deleterious effects of the limit on the right must not be disproportionate to the beneficial effects of achieving the objective.

    R. v. Oakes, [1987] 1 S.C.R. 103 at para. ***
    R.J.R. MacDonald v. Canada, [1995] 3 S.C.R. 199 at para. ***

54. This Court has emphasized that equality is among the most fundamental of Charter protected values. This is underscored by the recognition that Canada's international human right commitments must also inform the s. 1 analysis. Accordingly, any limitation on the equality rights of persons with disabilities must be subject to a very high standard of justification under s. 1.

    See cites to para. 35

55. It is essential that the issues of cost and allocation of limited resources be addressed and resolved only under the justification framework established by s. 1 and not under s. 15. The purpose of the s. 15 inquiry is to determine whether there has been a breach of a guaranteed equality right. The purpose of s. 1 is to determine whether the government is justified in infringing those rights. Any blurring of these lines subjects persons with disabilities to double scrutiny of whether it is economically feasible to uphold their guaranteed equality rights. To defeat disability claims on the issue of cost arguments at the s. 15 stage accords persons with disabilities less protection than other protected groups. To the extent that costs and allocation of limited resources are relevant, they are relevant only when the onus shifts and the government attempt to establish reasonable limits on rights and freedoms under the Charter.

56. In Eaton, Eldridge and Martin, this Court held that the duty to accommodate is a fundamental component of s. 15 of the Charter. The analysis of when that duty to accommodate might have been met - to the point of undue hardship - is an analysis that most properly occurs under the minimal impairment branch of the Oakes' test.

    Eaton v. Brant County Board of Education, supra at para. 66
    Eldridge v. British Columbia (Attorney General), supra at para. 65
    Martin

57. The belief that the cost of including and integrating persons with disabilities into society is unaffordable is based on a stereotype that under-estimates the abilities of persons with disabilities. It also ignores the greater costs, both financial and human, both long term and short term, that society must pay if persons with disabilities are excluded from the mainstream.

    supra at 269-270

58. For example, in the present case, the evidence before the lower courts established that the financial costs of a lifetime of institutionalization are significantly higher than providing ameliorative benefits at an early age. The human costs are still higher, both for persons with disabilities who are devalued and degraded by the attitudes and beliefs that render them helpless, dependent and limited in the contribution they can make to their communities, and for their families who may be unable to care for their children because they cannot afford the costs of treatment, and who may even feel they have no choice but to put their children into government care in order to secure for them at least some benefits and treatment.

59. It is inconceivable that there is a "pressing and substantial objective" on the part of the government to deliberately relegate a particular group of persons with disabilities to an inferior status as participants in human society.

60. Human Rights Commissions recognize that there is a prevailing myth that the costs associated with accommodating persons with disabilities is excessive. This assumption is belied by the fact that accommodation can often be implemented through creative modifications to eliminate barriers.

    See, for example, Ontario Human Rights Commission, Accommodation Guidelines

61. Cost arguments can also give rise to the belief that government spending priorities cannot be altered. On the contrary, public resources can always be reorganized and reallocated to promote and respect the Charter's equality goals for all citizens, regardless of ability.

    supra at 397-398

62. Even if this Court were to take a deferential approach to the government's refusal to provide an ameliorative benefit in the present case, it would accordingly fail the minimal impairment branch of the Oakes test:

    ... members of this Court have suggested that deference should not be accorded to the legislature merely because an issue is a social one or because a need for government incrementalism is shown; ... The leeway granted to the state is not infinite. Governments must demonstrate that their actions infringe the rights in question no more than is reasonably necessary to achieve their goals.

    Vriend v. Alberta, supra at para. 126
    R.J.R. MacDonald v. Canada, supra at para. ***
    Eldridge v. British Columbia (Attorney General), supra at para. ***

63. This Court has also recognized that it is not appropriate to undermine equality rights based on a fear of high costs:

    While in some circumstances excessive cost may justify a refusal to accommodate those with disabilities, one must be wary of putting too low a value on accommodating the disabled. It is all too easy to cite increased costs as a reason for refusing to accord the disabled equal treatment.

    Grismer, supra at para. 41

64. The CACL and the CCD submit that the Appellants have failed to demonstrate that the offending exclusion is justified as a reasonable and proportionate means to achieve the objectives of the universal health care plan in dispute in this case. In the present case, the human cost of denying the equal benefit and protection of the law far outweighs the financial cost to be borne through public expenditures.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS DAY OF APRIL 2004.

Ena Chadha/Dianne Wintermute // Elizabeth Shilton/Fay Faraday