Overcoming barriers on the road to accessibility legislation

Overcoming barriers on the road to accessibility legislation

LiQM_Mar2017_CoverThis article first appeared in the March 2017 issue of Life in Québec Magazine.

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By Nora Loreto

The Canadian Human Rights Act allows people to challenge discrimination in federal law or policy.

Canadians can make a complaint if they have been discriminated against based on any of 12 prohibited grounds, including race, gender, ethnicity or disability.

However, Canada has no federal legislation to compel federal agencies to reduce barriers and accommodate people with disabilities. Filing a human rights complaint is the only legal way to demand that a person’s right to access a government service, for example, be upheld. “Fifty per cent of the complaints to the Canadian Human Rights Act are about disability,” says Carla Qualtrough, Canada’s Minister of Sport and Persons with Disabilities.

Qualtrough, a lawyer and former Paralympic athlete, is the first person to hold this portfolio. Her ministry has been mandated to draft federal accessibility legislation, the first overarching legislation of its kind in Canada. Over the past six months, Canadians have been sharing their experiences and advice in a process that has included 18 cross-Canada consultations. The hope is that information gathered at these consultations will form the basis of new legislation.

The legislation would be a major victory for disability rights activists. They have been fighting for decades for laws at the provincial, federal and municipal levels that would force agencies to make their spaces, services, communications and policies more accessible.

In 1978, Québec passed the first provincial accessibility legislation in Canada. Since then, however, little has been done with the legislation to compel government agencies or businesses to comply. Over time, it’s been effectively rendered useless.

“Québec doesn’t have a systemic plan to address inaccessibility,” says Gift Tshuma, a Montréal-based disability activist. He advocates for improved accessibility in the city, especially when it comes to Montréal’s transit system.

Only 11 of Montréal’s 68 Métro stations are accessible despite decades of pressure from activists. “There are no sanctions or penalties to require people [to comply with] accessibility laws,” he says.

Melanie Benard, a disability rights lawyer, has also been fighting for better provincial accessibility legislation for years through the organization Québec Accessible.LiQ_Sub_Dec2015

Benard has shifted focus to the federal government, and currently manages a consultation project funded through the Council of Canadians with Disabilities, called the Alliance for an Inclusive and Accessible Canada. Together with the minister’s office, the Alliance will help co-ordinate more town halls and other outreach efforts to learn more about what Canadians with disabilities need and expect from the upcoming law, which is expected to be passed in late 2017 or early 2018.

“There’s a lot of frustration within the disability community, because it’s a process that we’ve gone through before,” says Benard. “There were some amendments made [in the early 1990s], but a lot of the issues that people wanted to see [addressed] back then are sadly the same issues that we’re focusing on today, and we’re trying to get them to the forefront of the government’s agenda.”

The new framework would apply to all federally regulated industries and areas of federal responsibility, as defined by Canada’s constitution. This includes inter-provincial transportation (including transport by air or train), broadcasting, postal service, telecommunications, procurement, the public service and services for indigenous people and communities. Legislation could compel agencies to create more accessible physical spaces, improve website readability and accommodate Canadians with disabilities as passengers, users, clients and, perhaps most importantly, employees.

Qualtrough was the chair of the British Columbia Minister’s Council on Employment and Disability when British Columbia’s accessibility legislation was created in 2004. She’s aware of how hard it will be to craft federal legislation that doesn’t overstep its constitutional authority.

She wants to build on the strengths of accessibility legislation from British Columbia and Ontario, and also look at examples from jurisdictions around the world, like the Americans With Disabilities Act of 1990. The wide-reaching U.S. law imposed accessibility obligations on the public and private sectors.

“We’ve heard that whatever we create has to have teeth, but also has to have flexibility to be implementable,” she says. While the federal government doesn’t have direct jurisdiction in sectors like health, education, transit infrastructure or regulation of small business, a federal act could create standards that, through a combination of political pressure, moral suasion and education, could compel Québec and other provinces to create stronger provincial legislation.

Audrey-Anne Trudel works with COPHAN, the Confédération des organismes de personnes handicapées du Québec, an organization that has participated in the federal consultations.

She says Québec, like most provinces, has a particular need for accessibility plans when the snow falls. “If snow isn’t well removed from sidewalks, people in motorized wheelchairs can’t roll on the sidewalk; they have to go on the street, which is dangerous. It’s also dangerous for people who use a cane, or blind people who can’t see obstacles,” says Trudel.

Municipal snow clearing would fall outside the scope of the federal legislation, but federal standards could encourage provincial and municipal governments to raise their own standards, says Trudel.

Trudel warns against replicating current legislation in Québec: “We need strong incentives for people to respect their obligations,” she says. “[The proposed legislation] will only address federal responsibilities, but we hope it’ll play a role in provinces adopting similar legislation.” The Office des personnes handicapées du Québec, which oversees Québec’s provincial accessibility law, would not comment on the federal legislation.

Qualtrough hopes the legislation will address what she sees as the greatest barrier for people with disabilities: accessing meaningful work. Statistics Canada data released in 2014 showed that only 49 per cent of Canadians aged 25-64 with disabilities were employed.

“People need, want and deserve jobs … for me, it always comes back to employment,” the minister says. “Removing the physical barriers that stop people from accessing employment will go a long way to create spaces where people with physical disabilities can work. And with large sectors of the employment market regulated federally, the legislation has the ability to create employment opportunities.”

Tshuma works with the law faculty at McGill University as a universal design consultant, and consults on equity and accessibility issues. He cofounded Accessibilize Montreal and has been advocating for more accessible design of public spaces for nearly a decade. What makes his work so difficult, he says, is that there are few ways to compel institutions, organizations or government services to reduce the barriers that exist within their physical spaces.
He sees improving physical accessibility as being closely linked to increasing employment opportunities for people with disabilities. If you can’t get to work on time because of an unreliable or inaccessible transit system, he observes, you’re effectively shut out of a job.

“I’m constantly reminded every day that we’re behind. It’s always a constant disappointment, but on a positive note, it’s a battle that we as a community are willing to fight, and that we will win in the future for sure,” he says.

Tshuma believes lack of knowledge among business owners or managers on what constitutes a barrier is a major reason for the slow pace of change. “Prospective employers aren’t aware of the basics,” he says. “The onus is always placed on employees to show them what their responsibilities are.”

Even programs intended to help people with disabilities can be part of the problem, from grants that are only available for full-time positions, to limited term grants that run out, leaving the worker out of a job. Tshuma hopes the need for improved employment programs and strategies for people with disabilities will be addressed in the new legislation.

“What will be done to equip people with the tools to hire someone with a disability? How will it be monitored?” Tshuma asks.

Despite the many challenges, Benard is optimistic that Qualtrough will succeed: “It’s the first time there’s a minister for persons with disabilities, and that’s inspiring some confidence. The minister seems very committed to the whole consultation process and making sure that this legislation is passed within a reasonable time frame.”

“There’s a lot of potential for the law to have a big impact, but there’s some frustration about a lack of enforcement. Our work doesn’t end when laws are passed. We need to continue keeping track of these things and staying involved,” she says.

“Even if progress is very slow, we’ll do what we can to create a better future for future generations,” says Tshuma.
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