Panel Presentation by Jim Derksen, Member of CCD International & Human Rights Committees

(We are also very quickly coming up to a Canadian anniversary, the anniversary of the signing of the Charter, and we, Canadians with disabilities, know that the Charter has been very important for us in terms of the advancement of our own human rights here domestically. Jim Derksen is a former chair of CCD, or COPOH as it was called in those days, and also former chair of CCD's Human Rights Committee. He works with us also in the International Committee and has worked over the years with Disabled Peoples' International and many disability organizations around the world. We wanted to take advantage of the fact that Jim was here and also to take advantage of the fact that there are some perhaps uniquely Canadian things with reference to the Charter that we ought to keep in mind over the course of the next couple of days as we talk about where we are going with this convention.)

Well, I feel honored to be up here with this panel. These last two presentations have been very substantive and I have benefited a good deal from them. In my brief review of CCD's involvement in human rights in Canada I would like to start about 50 years ago. We were, as recently as that, really in an environment where rights were not understood to belong to people with disabilities in the way they do today. In fact, the policies and programs that were current in the 1950s and 1960s, when I was growing up, had largely evolved as state charity with regard to disability. People with disabilities, as you know, were often locked up in institutions and government programs evolved in a discretionary policy context, and reflected a lot of the characteristics of charity. We still have a lot of programs and policies that really belong to the charity family of policies and programs.

However, in the 1970s, when we began to organize as COPOH, meaning the Coalition of Provincial Organizations of the Handicapped, we began to see human rights legislation evolve at the provincial level and also at the federal level. We took an immediate interest because we really wanted to move away from the discretionary kind of policy program provisions that was the only order of the day at that time. We wanted to claim some rights—claim rights from abuse, exploitation, and deprivation of liberty, and also demand rights to some share of the wealth of this country.

I remember the first Human Rights Act that emerged in Canada made very little mention of disability. The only area where we were protected in the early days was in the employment area. The right to non-discrimination in the areas of goods and services came later. We had to struggle for it, province by province, and also at the federal level.

Our member organizations worked at the provincial level and COPOH worked at the federal level. We began to achieve some better protection at the legislation level of provincial and federal Human Rights Acts.

We turned our mind to America. We saw the veterans coming back from Viet Nam. We saw their anger about not having the benefits of their Bill of Rights. We saw some early legislation in America, the rehabilitation acts of 1974, 1973, and these laws were talked about as having some power because they interpreted what the American Bill of Rights meant for people with disabilities. And we saw some changes occur in the United States.

We began to wonder whether we would ever have some kind of Bill of Rights or some other entrenched articulation of our rights at the constitutional level. In the 1970s, Mr. Trudeau sent a travelling commission across the country to talk about the idea of a Canadian Bill of Rights. We thought, well, perhaps, if that should ever come about, we might also be included. Maybe we also would be able to have that kind of fundamental protection.

In the early 1980s, of course, that became a reality. I was reminded by one of the participants here today about the Obstacles Report, which was coming out of a Special Parliamentary Committee on Disabled and the Handicapped. It was particularly constructed around the International Year of Disabled Persons, and it was in the first Obstacles Report, which is very little known. It's only about four or five pages long. It was tabled in Parliament just prior to the first meetings of the Special Joint Parliamentary Committee of the Senate and the House of Commons on the Constitution of Canada.

That little Obstacles Report had to deal with the following situation. We were part of the Commonwealth; we had inherited English legal traditions. There were many who felt that common law, as opposed to entrenched rights in a Constitution, was preferable. Common law left the power with Parliament, that is, with our elected officials. The Progressive Conservative Party, in particular, at that time, held that common law should remain the basis of our rights in Canada.

The Parliamentary Committee, the Obstacles Committee, as it has come to be known, as all parliamentary committees, had all-party representation. I was asked to be a policy adviser to that Committee, and COPOH, agreed to loan me out to the Committee. As a result, I spent about four months working with the Obstacles Committee on Parliament Hill and living at what was then the Skyline Hotel, which is just about a block away from our meeting place here today. We hammered out a kind of compromise. The Progressive Conservatives agreed with the Committee members from other parties that, if there should be a Constitutionally entrenched Charter, then it should include people with disabilities. Consequently, all the members of the Obstacle Committee lobbied within their parties for party support for the inclusion of disabilities in the Canadian Charter.

COPOH and other organizations in Canada were actively engaged and lobbying for disability inclusion in the Charter. At that time there was not such a comprehensive and well-articulated alliance between the different disability sectors as CCD is now. It was a great day when it was announced in the Special Joint Parliamentary Committee of the Senate and the House of Commons on the Constitution of Canada that the equality rights of persons with disabilities would be protected in the Canadian Charter, not only for people with physical disabilities, but that protection would be extended to those with mental as well as physical disabilities.

At about that time, COPOH was involved with the federal government in regard to preparations for the International Year of Disabled Persons. A very important civil servant, important to us and to our cause, was André LeBlanc, and he and Henry Enns from COPOH played a leadership role in drafting the World Program of Action at its first stage in Geneva. That World Program of Action had originally been intended to honour the themes of prevention and rehabilitation. Through our interventions in that drafting process, the themes were changed to full participation and equality. In other words, it was moved from a kind of medical framework to a rights-based framework.

I learned a couple of years later, when I was working with Disabled Peoples' International—I was their chief development officer for some time working in the developing world—that the World Program of Action document had tremendous impact on countries around the world. Governments took guidance from it in Africa, Asia, Latin America, Europe and North America and so on. It showed what a symbolic articulation of a new set of ideas and values could do in the world. It was not rights legislation per se. It was not a convention on rights. It had no enforcement, but it had good impact.

I want to return to the Canadian Charter just for a minute. After the Charter came into effect, we realized we needed to develop some good jurisprudence under the Charter. We organized the Canadian Disability Rights Council. This was supported and nurtured by COPOH. It functioned for several years. It took some very important cases to the Supreme Court. It successfully asked the courts to strike down discriminatory clauses in the Canada Elections Act. It did not survive, however, and COPOH or the Council of Canadians with Disabilities, inherited the work that the Canadian Disability Rights Council had been doing, which was to intervene in cases that implicated Charter jurisprudence, defend the rights of people with disabilities and help the courts articulate what the Charter meant for people with disabilities in Canada.

Unfortunately, we did not receive the funding that funding that the Canadian Government had provided to the Canadian Disability Rights Council, so we have been hard pressed to carry these tasks forward. We have, however, intervened in many cases at the Supreme Court level, and I will just mention a very few of them. The Andrews case, which established that the Charter section 15 would mean substantive equality rather than formal equality, was a very important case, and CCD together with LEAF intervened in that. The language of the decision reflected the kind of input we made. Much more recently, the Eldridge decision has great potential beyond the particular facts of the case that the decision was based on. It extends substantive accommodation delivery of public services to people with disabilities, even when public services are downloaded to non-governmental structures. The Latimer case, which was not a Charter, but a Criminal Code, case; one, in which we saw a man who murdered his disabled daughter, have the effective political support of a majority of the Canadian population. I fully believe that our work with the Charter helped inform the Supreme Court, helped to create a climate where we were provided the equal protection of the Criminal Code, and Mr. Latimer, who admitted to murdering his daughter, is in jail today, as any other murderer would be.

I want to say that, at this point, because of the Charter we have been able to appeal decisions of the Federal Court, and the Canadian Transportation Agency, which disallowed our complaint of discrimination against VIA Rail for having purchased more than a hundred railcars which are pretty much totally inaccessible to mobility impaired people. We have now been granted leave to appeal to the Supreme Court that decision of the federal court. This will provide a tremendous opportunity to see Charter rights practically embodied in the built environment we have in Canada, the infrastructures we use for travel, and potentially also the infrastructures we use to communicate. The Canadian Radio and Television Commission, for example, is a parallel structure to the Canadian Transportation Agency; they are both bodies that regulate our infrastructures, and whose decisions are appealable to the Supreme Court. These regulatory bodies should be informed by the decision we hope the Supreme Court of Canada will make in our appeal of the Federal Court VIA Rail decision, so that in future they will operate in accordance with Section 15 of the Canadian Charter and the jurisprudence developed around it.

We are developing a disability rights defence fund in CCD, because we simply need help to carry on with the serious financial implications of being in the courts for extended years on some of these very difficult cases.

This meeting is about drafting the UN convention. The UN convention is a logical successor to the work we did for 30 years in the area of asserting and defending and having rights articulated and established in this country and, indeed, in the world.

I congratulate us all for being here and I trust we will do the hard work over the next couple of days of reaching consensus on the kind of input we want to make to this convention-making process.

Thank you.

9 December 2005