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November 23, 2016

Homework for the Law Amendments Committee

Dear Committee,

I was relieved to learn that you have paused the progress of Bill 59. When I initially wrote, I feared that you would continue the juggernaut to pass the Bill and that you were unlikely to incorporate changes. You did the right thing.

Last year, I was honoured to receive an award from the Human Rights Commission for work advocating for people with disabilities. That work and my personal experience have given me a profound sense of the artificial and arbitrary barriers society constructs.

What follows may be hard for you to hear, but successive governments have been extremely tough on people with disabilities. There is a pattern of enacting good and decent laws, but when it comes to people with disabilities exceptions are made and justice is forgotten. For example, public transportation is a good thing, but you couldn't figure out a way to do it equitably, so you invented an inferior version for people with disabilities and hope no one notices. Minimum wage is good for most people, but apparently not for people with intellectual disabilities.

Generally speaking, people with disabilities are too busy dealing with the inequities (and iniquities) visited upon them to organize effectively. The Disabled Persons Commission is the voice of government, not of people with disabilities; the objective of condition-specific organizations like Autism NS is very particular; people are often isolated and don't have a lot in common. Although you will often hear the saying "Nothing about us without us" it can be hard to get at the "Something for us, by us".

You will hear a lot about the structure and process of the Act. It needs:

  • Enforceable standards
    • not subject to loathsome cost/benefit analysis (who among us would pass such a test?),
    • drawn liberally from the many hundreds of successful examples in other jurisdictions,
    • seldom requiring a Nova Scotia version
  • administered impartially
  • enforced with purpose
  • supported by incentives and penalties
  • all in a timely fashion

Sounds easy, but how will we know it will work?

We want this legislation to solve real problems, not to be mere window dressing. Good legislation is not conceived in a vacuum. Here are four serious, longstanding and difficult problems that should be addressed by the legislation. The Act should open the door for a solution. You can't just wave a magic wand to make workplaces accessible, but you can create the tools to make it happen. This list is not exhaustive, but illustrates the complex nature of the problem.

Employment. Employers are now allowed to discriminate against people with disabilities by perpetuating physical and process barriers. Not one of the hundreds of unemployed Nova Scotians using a wheelchair could get a sales clerk job at Jennifer's on Spring Garden, nor could they work at the upstairs offices of the Waterfront Development Corporation. Why is that permitted?

The Building Code and its cognates are the de facto Charter of Rights for people with disabilities. Who says rights disappear when a building is under 120 square meters? What has a "change of use" got to do with the right of access? Why are disabled veterans prevented from visiting part of the museum at Maritime Command? Is there really a good reason voters with wheelchairs can't use the front door at the House of Assembly? These arbitrary rules don’t belong anywhere near the Building Code, which should be strictly concerned with standards of construction.

Clearly these rules are designed to protect owners and operators from accessibility requirements, simply to save money. These rules don't reflect our values. The expense can be significant, but to protect the rights of all citizens, government has to be on the side of access, not the side of barriers.

  • Government must get creative with tax credits, syndication and timing thereof, and other incentives. Those general principles can be enumerated in the Act.
  • You need to do the math to demonstrate to yourselves that employment is a far better and more fiscally sound alternative to government support.
  • The Building Code cannot be allowed to determine Charter Rights.
Nova Scotia is constantly lamenting the shrinking workforce and declining population, yet here is a significant demographic that is ignored and wasted. We go to great lengths to educate people with disabilities, but we won't give them jobs. How smart is that? "Inclusive" and "Diverse" aren't just nice words - they make economic sense as well.

Transportation. Hand-in-hand with employment discrimination goes a discriminatory transportation system. You yourselves saw the effect of that when people wishing to comment in person were unable to do so on short notice due to the vicissitudes of the separate and unequal Access-a-Bus system. By its very nature it makes people with disabilities second-class citizens. A modern job requires long hours and considerable flexibility. How can that be scheduled a week in advance?

Health. What is the difference between a new hip and a new wheelchair? A cataract operation and a Braille note taker? Hips and knees liberate people just like wheelchairs and service animals do, yet people with disabilities have to crowdfund or rely on charity for this basic need. The Department of the Environment makes an exception to Public Health Regulations requiring a convenient washroom in restaurants. Even commonly accepted rules of hygiene are ignored. Yet again, people with disabilities fall through a policy loophole.

Sheltered Workshops are called Adult Service Centres in Nova Scotia. They are places where the pattern of suspending good laws and policies in favor of expedience is perfected. Despite good intentions, vulnerable people are
  • segregated
  • not subject to minimum wage regulations
  • not protected from abuse
The government, which regulates and finances the whole scheme has policies on diversity and workplace harassment for its own employees, but does not extend the same protection to people in sheltered workshops. It is not rocket science to predict a day of reckoning, embarrassing to government and well-meaning charities. An assault, a shakedown, inappropriate touching - all are to be expected when vulnerable people are sequestered and there is no governing policy. The criminal code has been notoriously ineffective in the past. It recalls our unpleasant history of residential schools and institutions, and more recent lessons drawn from the Incompetent Person's Act. We must be extra careful to avoid past errors.

  • There is no consistent policy on sexual harassment, bullying, or financial exploitation. I asked the Department of Community Services for a copy of their policy and received this response: "Individual centres would have their own policies around harassment and their own mechanisms for dealing with participant complaints. We do not have a provincial policy." In fact, most centres have no policy.
  • Here is a telling quote from a Director at Rotary House, a sheltered workshop that does routine work for Kohler Windows: "the productivity of the clients at RH far surpasses that of the regular employees at Kolher." Shouldn't they be Kohler employees?

In sum, here is the test of the legislation:
  • Will it provide the means to end employment discrimination?
  • Will it provide the means to end separate and unequal transportation?
  • Will it provide the means to assure equality of health care?
  • Will it provide the means to end the unacceptable aspects of sheltered workshops?
Each of these problems is solvable. But they need to be acknowledged for the discrimination they represent, carefully thought through and frequently reviewed.

In pausing, you have acknowledged the depth of the disappointment in the legislation. In pausing, you have signaled a determination to get this important legislation right for its own sake, for the people of Nova Scotia, for people with disabilities, and for your legacy.

Thank you for considering this. Please do not hesitate to call or write if I can be of assistance.

Warren Reed

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