I just finished reading HUMAN RIGHTS REVIEW AND REMEDY FOR THE FINDINGS OF SYSTEMIC DISCRIMINATION AGAINST NOVA SCOTIANS WITH DISABILITIES, the highly anticipated response to the Court of Appeal’s determination that there is a problem with the treatment of people with disabilities.
“The Disability Rights Coalition (DRC) is today releasing the Expert Report that formed the foundation of its Interim Settlement Agreement with the Province and the NS Human Rights Commission.” makes it sound like a done deal, but I'm guessing the current Board of Inquiry chair - Donald C. Murray Q.C. - still has to sign off.
Murray says “While the Province and the DRC and the Commission are certainly entitled to discuss and to resolve anything they wish, a series of piecemeal resolutions about particular effects will not really change the assignment that I have been given in this Inquiry…. what is the appropriate systemic remedy for the policies and practices that have created disadvantage since 1998?”
I am concerned that by agreeing to this report on the systemic mistreatment of people with disabilities by the Department of Community Services, the province will claim to have remedied the long list of similar offenses in other departments. And the Human Rights Commission will be free to repeat egregious errors.
The Report
I think the authors would say these are the problems to be addressed:
1. Unnecessary Institutionalization (both in purpose-built institutions for persons with disabilities as well as other institutional settings such as psychiatric hospitals);
2. Right to assistance when in need denied to eligible persons with disabilities;
3. Community of choice: people often ‘placed’ in settings distant from their families/friends;
4. Frequent, indefinite, extended delays in the provision of assistance (waitlists) for qualified, eligible applicants and recipients despite statutory entitlement.
The report says: ‘To fix these problems, the Disability Rights Coalition (DRC) and the Province agreed to work together on a Human Rights Remedy. A Human Rights Remedy is a way to solve problems like the one we talked about above that is based on human rights.’
The report describes six ‘Key Findings’:
The main thrust of the report is the very detailed plan to increase available options through regionalized services coordinated provincially. The goal is a ‘human rights’ solution.
The report offers some previously hidden numbers about the $500,852,000 (half a billion dollars!) Disability Support Program at Community Services
That’d be $85,659 each!
The most striking bit of new info is that lots of current participants (1475 of 5847) are looking for some other arrangement - 29% want something closer, better or more community-oriented. The waitlist for non-participants - 1834 - is as long as I imagined (there is no overlap between these two groups).
Human Rights as the Strategy
Although the words ‘human rights’ appear 55 times in the final paper, they are not enumerated. The Canadian Charter of Rights and Freedoms is not mentioned. There is general reference to the UN Convention on the Rights of Persons with Disabilities (UNCRPD) “Guidelines on Deinstitutionalization”. The Universal Declaration of Human Rights, drafted by a UN committee chaired by Eleanor Roosevelt in 1948 lists 30 ‘basic rights and fundamental freedoms’.
I suppose the four problems above are the consequences of Human Rights violations, but it would be useful to phrase them in human rights terms. To root out systemic discrimination, one should start by documenting the exact human rights to be restored. There are 50 articles in the UN Convention. Which ones are in play? Where did the province go wrong?
Any of these?
Article 11 – Situations of risk and humanitarian emergencies
Article 12 – Equal recognition before the law
Article 13 – Access to justice
Article 14 – Liberty and security of person
Article 15 – Freedom of torture or cruel, inhuman or degrading treatment or punishment
Article 16 – Freedom from exploitation, violence and abuse
Article 17 – Protecting the integrity of the person
Article 18 – Liberty of movement and nationality
Article 19 – Living independently and being included in the community
Article 20 – Personal mobility
Article 21 – Freedom of expression and opinion, and access to information
Article 22 – Respect for privacy
Article 23 – Respect for home and the family
Article 24 – Education
Article 25 – Health
Article 26 – Habilitation and rehabilitation
Article 27 – Work and employment
Article 28 – Adequate standard of living and social protection
Article 29 – Participation in political and public life
Article 30 – Participation in cultural life, recreation, leisure and sport
Having done that, a cross-reference table can be constructed showing how the proposed solutions fulfill specific rights.
Examples abound. Guidance on which Human Right affects what kind of program is useful.
The ineptitude and irony of our Human Rights Commission
The court acknowledges this:
[191]
It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions; see generally M. David Lepofsky, “A Report Card on the Charter’s Guarantee of Equality to Persons with Disabilities after 10 Years -- What Progress? What Prospects?” (1997), 7 N.J.C.L. 263.
And the court finds that:
[239]
In reaching this conclusion, the Board (Human Rights Board of Inquiry) noted the potential benefit to Ms. MacLean and Mr. Delaney of a large damage award was limited because of their disabilities (at p. 11):
Joey Delaney is so disabled that payment to him of a very large sum will not have a greater impact on his life than a moderate sum. Beth MacLean does have capacity, but the potential benefit to her of a very large damage award is limited. I do not suggest that a payment ought to be limited because of disability, but 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.
This is exactly what Mr. Lepofsky is talking about - shamefully coming from a Human Rights tribunal. Apart from this mild scolding of J. Walter Thompson Q.C., the court fails to cite this compelling example of ‘systemic’.
How did the decision by Walter J Thompson get by the Human Rights Commission? They had their team of lawyers ‘watching brief’ but they must’ve been asleep during the part of the argument that crossed the line into blatant discrimination.
The Human Rights Commission makes other rules that are discriminatory:
It favors ‘Restorative Justice’, words which do not appear in the UN Convention
It allows non disclosure agreements, letting offenders have a’ Get Out of Jail Free’ card
It does not follow through on actions made on decisions
They got this mess started and need to ‘fess up.
In Summary
The report proposes to end Systemic Discrimination by focusing on belonging to a community and makes the case that local control is a better choice than province-wide uniformity. But the connection to specific rights is not articulated.
Surprisingly, I agree with much of the report - the approach to social assistance is detailed, complex and the timeline is tight. On other issues, the province will happily throw people with disabilities under the (inaccessible) bus.
Systemic Discrimination is found in Transportation, Employment, Justice, Education, Building Codes - even in the Human Rights Commission itself, as Mr. Thompson so cleverly demonstrates.
Mr. Bartnik risks giving the province a pass on ‘Systemic’ by holding them to account on the single issue of social assistance. The province will say “You can’t get a bus from Musquodoboit? That’s not systemic!” or “You still can’t wash your hands in restaurants? Too bad, but it’s not systemic”.
The proposal to create a cabinet level Ministry for Disability or to place all disability concerns under Community Services offends the very self determination the report values and promotes. People with Disabilities took the lead in writing the Accessibility Act, ensuring that it fell under the Department of Justice. Imperfect as it is, the Accessibility Directorate is the result of First Voice consultations. The Justice Department has a moral dilemma representing people with disabilities and departments that offend. Not an insignificant problem.
Suggestions for streamlining and enhancing the Directorate are welcome, but disbanding it is not an option.
Gus Reed
The James McGregor Stewart Society
Some facts and observations about the report:
Taking a stab at economics would be a good idea. It’s not all expenses - if done correctly there are offsetting revenues - maybe a lot!
Perhaps Service Providers need some required education and additional incentives
A robust, fast, effective, clear complaint system is desperately needed. People with Disabilities are vulnerable and communities attract predators and government turns away
Consider repurposing institutions for symbolic effect
Advocate for different kinds of occupancy
Ownership through RDSP
Traditional Co-ops
co-housing
non-profit owned cooperative community.
Use tax incentives to enlist sponsors - individuals and business.
Figure out how best to use new Federal programs.
Distributed solutions are nearly always better
More telehealth, better record keeping, more technology
Monitoring
Check ins
Employing people with disabilities
All dollars flow through client’s or guardian’s hands
Government listens too much to uninformed businesspersons
The collection and distribution of data is shameful, secretive and amateurish.
Launch some experiments. A micro co-housing project in Bridgetown would benefit the town AND the people who participate in the experiment. Turning an old high school in New Glasgow or Pictou into co-op housing (and paid for by Paper Excellence) might help to heal a broken community
The treatment of People with Disabilities is an enduring shame and the solution is not more government but more self determination! Government is the problem, not the answer.
If done right, perhaps the Federal Guaranteed Income will help.
The solution lies with economics and creative use of the talents and determination of the principals. There are plenty of smart, underused People with Disabilities. Turn them loose, stop condescending and treat them like real Canadians.
The failure to enable a useful part of the citizenry is the heart of the matter, and their economic power can be redeeming in a host of dimensions.
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