CCD Affidavit in the Hughes Case

Tribunal File No.: T1373/10308
Complaint No.: 20080351

IN THE MATTER OF A COMPLAINT TO

And

IN THE MATTER OF A MOTION FOR AN ORDER GRANTING INTERESTED PARTY STATUS TO THE CANADIAN HUMAN RIGHTS TRIBUNAL

B E T W E E N:

JAMES PETER HUGHES
Complainant

-and-

ELECTIONS CANADA
Respondent

AFFIDAVIT OF LAURIE BEACHELL

I, Laurie Beachell, National Coordinator of the Council of Canadians with Disabilities ("CCD"), of the City of Winnipeg in the Province of Manitoba, AFFIRM THAT:

1. I have been the National Coordinator of the CCD since April 1, 1984. I have been active in working on behalf of persons with disabilities since 1975. I was involved with the predecessor of the CCD, the Coalition of Provincial Organizations of the Handicapped ("COPOH"). Therefore, I have personal knowledge of the matters to which I hereinafter depose.

A. The CCD's Interest in this Human Rights Complaint

2. The CCD seeks an order granting it interested party status because this case raises issues of critical legal and national importance concerning the human rights of persons with disabilities. Specifically, this case raises issues regarding Elections Canada's duty to accommodate people with disabilities when they exercise their right to vote.

3. Voting is a fundamentally important right in a free and democratic society. For all Canadians, including Canadians with disabilities, voting is one of the most important ways to participate in the political process and have a voice in political, social and economic issues of the day. Voting is an essential act by which all Canadians, including Canadians with disabilities, exercise their rights and obligations as citizens of this country. Given the fundamental importance of voting, barriers that people with disabilities encounter when they attempt to exercise their right to vote seriously undermine their status as equal citizens in Canadian society.

4. The CCD is a national organization with a cross-disability membership, which includes persons with various disabilities, such as permanent, chronic and episodic conditions, including physical, sensory, intellectual, psychiatric, and multiple disabilities. As a national organization representing a broad range of persons with disabilities, the CCD has a direct and genuine interest in ensuring that the human rights of persons with disabilities are protected, respected and enforced. Given the fundamental importance of voting to people with disabilities, the CCD has a direct and genuine interest in the outcome of this human rights complaint.

5. The CCD is uniquely positioned to provide the Tribunal with the perspective of persons with disabilities on the significant human rights issue raised by this complaint. If granted interested party status, the CCD will contribute to the proceedings by providing evidence and making written and oral submissions on the following matters:

• The CCD would provide expert evidence regarding the fundamental importance of voting and the impact on people with disabilities when they experience barriers that prevent them from voting on an equal basis as people without disabilities. This understanding of the barriers experienced by persons with disability in the context of voting is critical for the Tribunal to have before it in order to interpret the duty to accommodate and the factors to be considered in assessing undue hardship;
• The CCD would provide expert evidence regarding the systemic implications of this case for Canadians with disabilities; and
• The CCD would provide expert evidence and make legal submissions regarding systemic remedies that would address the broader implications of this case.

B. The CCD's Demonstrated Expertise in Disability and Equality Issues

6. The CCD is a national not-for-profit umbrella association that represents people with a wide range of disabilities. Formerly called COPOH, it was founded in 1976. It consists of nine provincial member groups, seven national disability organizations and an affiliate member. The CCD is accountable to a membership of several hundred thousand Canadians with disabilities. It is administered by a Council of Representatives which includes one designate from each member group. The member organizations of the CCD are:

Provincial Members Groups:

1. British Columbia Coalition of People with Disabilities;
2. Confédération des Organismes de Personnes Handicapées du Québec (COPHAN);
3. Consumer Organization of Disabled People of Newfoundland and Labrador;
4. Manitoba League of Persons with Disabilities;
5. Nova Scotia League for Equal Opportunities (LEO);
6. P.E.I. Council of the Disabled;
7. The Alberta Committee of Citizens with Disabilities (ACCD);
8. Saskatchewan Voice of People with Disabilities; and
9. Citizens with Disabilities Ontario

National Disability Organizations:

1. Canadian Association of the Deaf;
2. DisAbled Women's Network-Canada (DAWN-Canada);
3. National Network for Mental Health;
4. Alliance for the Equality of Blind Canadians;
5. National Educational Association of Disabled Students;
6. Thalidomide Victims Association of Canada; and
7. People First of Canada.

Affiliate Member:

1. N.W.T. Council of Persons with Disabilities

7. The CCD was established by persons with disabilities to create a voice for Canadians with disabilities. Its goal is to promote the full participation of, and equal opportunities for, persons with disabilities in Canadian society. The CCD's mandate includes a wide range of advocacy to improve the status of persons with disabilities, providing a democratic structure for persons with disabilities to voice their concerns, law reform and policy development, and undertaking test case litigation under the Canadian Charter of Rights and Freedoms and human rights legislation in support of persons with disabilities. Our specific goals are:

1. To improve the status of persons with disabilities;
2. To promote self-help for persons with disabilities;
3. To provide a democratic structure for persons with disabilities to voice concerns;
4. To monitor federal legislation affecting persons with disabilities;
5. To promote policies determined by persons with disabilities in Canada;
6. To share information and co-operate with disability organizations in Canada and in other countries; and
7. To establish a positive image of persons with disabilities in Canada.

8. The CCD is actively engaged in public policy work and this work is guided by the principles of access, equality, citizenship, inclusion, universal design, empowerment, self-representation, self-determination, consumer control, self-management, and independent living. These principles define how service providers, employers, and governments should function to make their goods, services, facilities, and accommodations more responsive to the needs of persons with disabilities. For example, citizenship considers persons with disabilities as having the same rights and responsibilities as persons without disabilities, and as such, socially made barriers which prevent our participation and discriminate against us must be eliminated.

9. The CCD supports the adherence to the principles of universal design to ensure that new barriers are not needlessly created. Universal design refers to a philosophy that all environments (built structures, technological systems, etc.) must be designed to be usable by a broad range of people. Universal design is rooted in the principles of equality and citizenship and seeks to foster social participation for diverse populations by maximizing accessibility. Full inclusion in the first instance, without after-the-fact adaptation or retrofitting, is the goal of universal design. The philosophy of universal design recognizes that all design involves a deliberate choice and the principles of access, inclusion and equality, must always inform that choice. Universal design not only ensures that persons with varying disabilities will have access, but that society generally, with all its diversity, can participate together. This is especially true as we contemplate improved and comprehensive social planning for our ageing population, as we see disability increase with age.

10. The CCD is Canada's official representative on Disabled Peoples International, a body that has been accorded consultative status with the United Nations Economic and Social Council. The CCD was a participant in the Canadian delegation involved in negotiating and crafting the legal language of the United Nations Convention on the Rights of Persons with Disabilities, which Canada signed on March 30, 2007. The CCD played an international role in defining disability and drafting concepts relating to accommodation, universal design, accessibility, inclusion, dignity and discrimination. We also hosted four national consultation meetings in advance of meetings of the United Nations Ad Hoc Committee that considered the Convention.

11. The CCD's advocacy mandate at the Federal level has led to our active participation in several initiatives aimed at ensuring that all institutions of society are built upon inclusive models through a process of barrier removal and universal design principles. Of particular importance to CCD is that the Federal Government and its corporations demonstrate a strong and on-going leadership on disability issues.

12. CCD has been actively engaged in advocating for accessible electoral processes for over twenty-five years. CCD's first initiatives in this area resulted in a recommendation on accessible voting in the milestone Obstacles Report in 1981. CCD has worked with Elections Canada to ensure polling station accessibility and we are dismayed that in 2009 significant barriers to voting are still being experienced by persons with disabilities in a major urban centre.

13. In 1995-1996, the CCD played an active role on the Federal Task Force on Disability Issues ("the Scott Task Force"), by co-ordinating responses from disability groups during the consultations. The CCD prepared and presented a brief to the Scott Task Force entitled Federal Leadership on Disability and Citizenship Rights Required in which the Government of Canada was urged to take responsibility in ensuring full citizenship rights, national standards and equality of opportunity for all Canadians regardless of "mental" or physical disability. In this brief, the CCD emphasized the right of persons with disabilities to access our society's social, economic and physical infrastructure in order to facilitate full and equal participation in community life. The Scott Task Force's final report entitled Equal Citizenship for Canadians with Disabilities: The Will to Act (October 1996) emphasized these principles of inclusion and accessibility.

14. In 2000, the CCD promoted the disability community's need for the right to accessibility to the built environment based on principles of universal design in submissions to the Canadian Commission on the National Building Code.

15. The CCD has spearheaded the direction for consultation on issues of barriers and accessibility. Recognizing that Canadians with disabilities still face significant barriers to full inclusion, the CCD partnered with the Canadian Association for Community Living to develop a National initiative entitled Building an Inclusive and Accessible Canada. The CCD created a website (www.endexclusion.ca), received hundreds of stories that brought a human face to disability, and collected thousands of signatures to an online Declaration that calls on governments to move forward an Agenda for Creating an Inclusive and Accessible Canada. On November 2, 2006, we held a Forum on Parliament Hill in Ottawa, in which hundreds of people attended.

16. The CCD wrote a submission, Taking the Lead: Council of Canadians with Disabilities Proposals for Amending the Canadian Human Rights Act to the Canadian Human Rights Act Review Panel ("La Forest Review"), which was established to examine the Canadian Human Rights Act ("CHRA"). The CCD's submission was written in 1999, subsequent to extensive research and consultation, and offered a disability analysis and criticism of the then Canadian Human Rights Commission and the CHRA. The CCD also provided technical consultation to the Department of Justice on the duty to accommodate amendment to the CHRA.

17. In 2005, Social Development Canada awarded the CCD a research project to examine the Canadian Human Rights Commission's new practices so that the CCD could provide informed comment on how these changes were meeting the needs of Canadians with disabilities.

18. The CCD was a participant in the Disability and Information Technologies Research Alliance, a federally-funded research alliance that brings together members of academia, industry and consumer-based disability advocacy organizations to investigate how to eliminate barriers in emerging and existing information and communication technology. One particular focus of the CCD is the development of information technologies that address the accessibility requirements of people with disabilities by the incorporation of universal design principles.

19. CCD is also currently the recipient of a Social Sciences and Humanities Research Council grant that will fund CCD's research into issues of poverty and Canadians with disabilities. This Research Alliance includes five national Community Partner organizations and four Academic Institutions.

20. For the past several years, the CCD has been actively advocating for improved accessibility in Canada's federal transport system and has shown leadership in transportation accessibility. The CCD was involved in the project that brought accessible intercity buses to Canadian cities, was consulted during the establishment of the National Policy on Accessible Transportation and co-chaired the Ministerial Advisory Committee on Accessible Transportation. In addition, we have participated in research and development projects with the Transportation Development Center and consulted with the Federal government in the development of the National Transportation Act, 1987 (now the Canada Transportation Act, 1996, c. 10).

21. The CCD is seeking interested party status because this human rights complaint raises issues of critical importance to all persons with disabilities. The CCD's membership includes cross-disability consumer advocacy associations and disability-specific advocacy organizations. The CCD has developed extensive knowledge and expertise with respect to human rights issues faced by persons with a wide range of disabilities. As such the CCD is uniquely positioned to provide the Tribunal with the cross-disability perspective of people from across Canada.

C. The CCD's Extensive Experience in Equality Rights Advocacy

22. Under its former name, COPOH, or its current name, the CCD has been granted leave to intervene in more than a dozen cases before the Supreme Court of Canada. The majority of the cases in which CCD has intervened involve human rights issues, and many of the cases are landmark decisions in Canadian human rights law. A sampling of these cases includes:

• Ontario Human Rights Commission et al. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (known as "O'Malley"), which considered the duty to accommodate disability;
• Bhinder v. Canadian National Railways, [1985] 2 S.C.R. 561, which dealt with the concept of adverse effects discrimination;
• Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, which considered the meaning of the right to equality and the concept of "substantive equality" under s.15 of the Charter;
• Weatherall v. Canada (A.G.), [1993] 2 S.C.R. 872, which dealt with basic personal dignity rights under s. 7 of the Charter and the proper application of s.15(2);
• Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, which considered equality rights for persons with mental disabilities under the Saskatchewan Human Rights Code;
• Eldridge v. B. C. (A.G.), [1997] 3 S.C.R. 624, which considered the duty to accommodate and undue hardship in the context of sign language interpretation services to ensure effective communication in a health care setting;
• Grismer v. British Columbia Council of Human Rights, [1999] 3 S.C.R. 868, which considered the application of the duty to accommodate to the issuance of a driver's license to a person with a disability;
• Granovsky v. Minister of Employment and Immigration, [2000] 1 S.C.R. 703, which considered whether temporary disability fell within the protection of s.15 and the application of s.15 to the Canada Pension Plan;
• Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78, which considered the application of s.15 of the Charter to Crown refusal to provide funding for therapy for autistic children; and
• Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 381, which dealt with equality rights under ss. 15 and 1 of the Charter.

23. More recently, in May 2009, the CCD participated as an intervener before the British Columbia Court of Appeal in Moore v. British Columbia (Ministry of Education) and North Vancouver School District No. 44. The Court has not yet released a decision in this matter.

24. The CCD appeared before the Supreme Court of Canada as a party in its own right in the recent case Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650. This decision dealt with the duty to accommodate and the issue of undue hardship in the context of accessibility to rail cars.

25. Through its extensive litigation before Canadian courts, the CCD has played an active role in promoting a judicial understanding of equality that recognizes the historical disadvantage and discrimination experienced by persons with disabilities, and the need to remove disability-related barriers and create an inclusive society. Similarly, the CCD seeks an order granting it interested party status in the current case in order to provide expert evidence and make legal arguments that will provide the Tribunal with an understanding of disability discrimination in the context of voting. This perspective will assist the Tribunal in adjudicating the complaint before it by providing an important and relevant context for interpreting the duty to accommodate and the factors to be considered in assessing undue hardship.

D. The CCD's Unique Perspective

26. The CCD is uniquely positioned to provide the Tribunal with a pan-Canadian, cross-disability perspective on the fundamentally important human rights issue raised in this case. This perspective draws on the CCD's membership of disability advocacy organizations, the CCD's extensive knowledge of the exclusion and barriers people with a variety of disabilities face, and the CCD's well-established history of defending and advancing the human rights of people with disabilities.

27. Persons with disabilities comprise a significant part of Canada's population. In 2006, it was estimated that 4.4 million people, over 14% of Canadians, reported having a disability. This is approximately a 2% increase from the national disability rate reported in 2001. Disabilities related to mobility, agility and pain were the most commonly reported disabilities among Canadian adults, and the majority of people who reported one of these disabilities were also affected by the other two. Attached as Exhibit "A" to my affidavit are corresponding excerpts from the 2006 Statistics Canada report titled Participation and Activity Limitation Survey 2006: Analytical Report.

28. These statistics demonstrate that a significant number of Canadians have one or more disabilities. It follows that a significant number of Canadians may require accommodation for their disabilities at some point during the voting process. It is the CCD's view that this case raises systemic issues that will impact millions of Canadians with mobility and other disabilities. The CCD will provide expert evidence regarding the systemic implications of this case for Canadians with disabilities. The CCD will also provide expert evidence and legal submissions regarding systemic remedies that would address the broader implications of this case.

29. Furthermore, the CCD will provide expert evidence regarding the fundamental importance of voting and the impact on people with disabilities when they experience barriers that prevent them from voting on an equal basis as people without disabilities. This perspective will assist the Tribunal in adjudicating the issues before it. Understanding disability disadvantage is critical when interpreting the duty to accommodate, and the factors to be considered in assessing undue hardship. The capacity of persons with disabilities to seek redress for the barriers which give rise to the duty to accommodate under the Canadian Human Rights Act will be substantially undermined if the concepts of accommodation and undue hardship are not sensitive to the discrimination experienced by persons with disabilities.

30. The CCD advances an equality-oriented approach to understanding disability, often referred to as the social model of disability. This approach advocates that, instead of focusing on the disability as something that needs to be "cured", we need to concentrate on how to ameliorate the discriminatory social dynamic that precludes persons with disabilities from participating in their communities. We argue that disability discrimination occurs when society does not contemplate the needs of persons with disabilities in the initial stages of planning and thereby discourages or precludes the full participation, inclusion, and citizenship of persons with disabilities. It is of utmost importance to the CCD that this perspective be brought to the issues raised in this case. 31. The expert evidence and legal argument that the CCD proposes to bring to this case are set out more specifically in the affidavit of Jim Derksen, which accompanies my affidavit.

E. Conclusion

32. The CCD respectfully asks this Tribunal for the opportunity to present expert evidence and make submissions on an issue of fundamental importance to Canadians with disabilities. If granted interested party status, the CCD believes that it's evidence and argument will assist the Tribunal in the determination of the issues before it by providing the Tribunal with a disability rights context for adjudicating the duty to accommodate and the considerations of undue hardship. Furthermore, the CCD's evidence and argument will deal with the systemic implications of this case for Canadians with disabilities. We believe that evidence and argument will add significantly to the legal positions being presented by the parties.

33. As a national organization representing persons with a diverse range of disabilities, the CCD has a direct, relevant and substantial interest in this human rights complaint. The CCD has developed extensive knowledge and expertise with respect to human rights issues faced by its community. The CCD has been recognized by the government and various Courts as having specialized expertise to offer with regard to disability and equality rights analysis. The CCD is uniquely positioned, therefore, to provide the Tribunal with the perspective of persons with disabilities regarding the issues that are before it.

34. The CCD does not seek to delay the proceedings or obtain additional time in respect of the litigation schedule that has been established.

35. The CCD will not seek costs against any party and it would ask not to be liable to any party for costs.

36. I make this affidavit in support of the CCD's motion to be granted interested party status in this human rights complaint, and for no other or improper purpose.

Affirmed before me at the City of Winnipeg, in the Province of Manitoba, on this day of September, 2009

Commissioner for Taking Affidavits

Laurie Beachell