Systemic Ecology

'Systemic' is a fashionable word. It's one of those words that tries to put a shine on a sneaker.  You could say "there are a lot of racists around", but "there is a systemic problem with differential treatment of racialized communities" sounds better.  Nevertheless, it's a real problem.

'Systemic' means 'pervasive' and when applied to concepts of human rights it means a particular outlook is embedded in the institutions and organizations of society.  Laws, rules, policies and procedures are influenced by and perpetuate the outlook.  African Nova Scotians?  Why would they need clear title to their land?  People with Down Syndrome?  What would they do with minimum wage?

There has been a long-running case before the Nova Scotia Human Rights Commission involving four people in the care of the Department of Community Services.  The claim was that the four were improperly housed because of systemic discrimination.  The inquiry ruled that they were indeed improperly housed, but the discrimination was not systemic.  An appeal to the courts resulted in a reversal.  The province then appealed to the Supreme Court of Canada and was embarrassed by unceremonious dismissal.

The appeal court found systemic discrimination in all aspects of the programs of the Department of Community Services:

• "A proper analysis, considering the record and relevant legislation, gives rise to a finding that the “service” at the heart of the complaints is social assistance generally."

Plaintiff's lawyers, collaborating with the province on remedies, are now focusing on the rights of persons with disabilities to community based, residential supports and services - housing.

The parties have agreed to seek the help of an independent disability specialist (Eddie Bartnik from Australia) to gather information about a range of “enablers” or factors that sustain pervasive discrimination.

The court decision does encompass other programs of Community Services besides housing:

1. Disability Support Program
2. Adult Service Centres
3. Protection For Persons in Care
4. Workplace Support Program

All of these programs are found to be discriminatory and it would be a lost opportunity to limit Mr. Bartnik's inquiries to the problem of housing.  Since the court specifically includes all of social assistance, isn't there an obligation to explore all aspects?  Dealing with only one problem seems to be missing an opportunity to get at the heart of the matter.

Many other systemic discriminatory practices are not covered by the decision:  

• preference of HRC for 'restorative justice' and nondisclosure agreements
• failure by province to follow their own regulations
• Unexplained delay in promulgating work from the Accessibility Directorate
• Separate and unequal transportation
• proliferation of forms and bureaucratic hurdles
• The list goes on.......

For example, consider people with Down Syndrome.  They are a specific genotype: their third copy of chromosome 21 is usually associated with physical growth delays, mild to moderate intellectual disability, and characteristic facial features.  The average IQ of a young adult with Down syndrome is 50, equivalent to the mental ability of an eight- or nine-year-old child, but this can vary widely.  There are about 45,000 Canadians with Down Syndrome.  

In Nova Scotia, many people with Down Syndrome live in large institutions, almost completely funded with taxpayer dollars, and work in 'social enterprises' for a pittance.   They are exempted from minimum wage regulation simply on someone's say-so.  In addition, people with trisomy 21 do not have:

• any mandated program of education about abuse or sexuality
• care from people who have a uniform code of conduct
• access to a well defined system of complaint 

It's not a stretch to draw a straight line from this clearly genetic discrimination to Residential Schools and even worse.  In investigations of systemics, seeking 'enablers' we're looking at the health of the forest.  When we find an unhealthy tree, we should replace it.

Is the Human Rights Board of Inquiry chair who was held in error by the Court of Appeal many times to be rehired despite ample evidence of discriminatory beliefs?   His justification for low awards to people with disabilities hurts the credibility of the HRC:

"I do say that a lack of capacity to benefit from the fruits of an award of the size that is advocated is a relevant factor in discouraging me from ordering that they be paid millions."  

Does he know that a new power chair costs $30,000?  That specialists in orphan conditions can be a continent away?

Should lawyers for the Human Rights Commission be allowed to continue 'watching brief' or should their job be to advocate  for complainants?

Perhaps Mr. Bartnik can help us find patterns of systemic discrimination.   Let's take immediate steps to improve, and not limit him to one piece of the puzzle. 

Gus Reed