Justice is Served

By Raymond D. Cohen

My first inkling that something was afoot this past October 9 was when the Council of Canadians with Disabilities’ (CCD) Mel Graham
called from Winnipeg to let me know that one of the most powerful
and positive things ever to happen regarding disability in Canada
had just transpired.

The short story: The Supreme Court of Canada unanimously ruled
that failure to provide sign language interpretation where it is
needed for effective communication in the delivery of health care
services violates the rights of Deaf persons. This based on an
appeal by three Deaf individuals, Eldridge, Warren and Warren, in
their case against the Province of British Columbia.

The longer story, Mel advised, could best be had from David
Baker, Executive Director of ARCH: A Legal Resource Centre. It
was, after all, David and ARCH lawyer Patti Bregman who had
represented interveners CCD, the Canadian Hearing Society and the
Canadian Association of the Deaf when the case was tried.

David draws an analogy between the Eldridge decision and the
celebrated case of Brown vs the Board of Education in the United
States. "That decision crystallized hundreds of years of effort
towards equality on the part of the black community, and saw the
U.S. Supreme Court take an aggressive stance in support of
equality in the education system," he says. "This case [may be]
the Canadian equivalent -- certainly for the disability
community, if not for all equality-seeking groups."

"The decision," David goes on to explain, "is worded very
broadly, and was unanimous! All nine Justices signed the
decision, indicating that this is their united statement on what
equality and rights means."

And the impact is surely nation-wide. "While the decision itself
applies to British Columbia, the implications of it, insofar as
sign interpreters in the health care system, will be felt
immediately in every other province. There is no reason why
Newfoundland or Manitoba or Ontario should not be bound by the
decision. Indeed, they all had lawyers representing them at the
case, opposing the Deaf plaintiff’s position. So, each of those
provinces had their day in court -- and they lost."

Further, David makes it clear that while the specific case in
point pertains to people who are Deaf, the broader implications
have to do with accommodation in a much more general sense.

"What the Supreme Court said here was that when we talk about
accommodation, we’re talking about barrier removal -- and not
necessarily just small barriers. The Court is saying that equal
access is what equality is all about in this country. We re not
going to force every individual to sue their doctor or their
hospital -- instead, we are going to recognize that we have a
systemic problem, and we’re going to address it systemically."

The case, then, is not just about sign language interpretation.
This court decision has reinforced the message that equal access
is guaranteed under the Charter of Rights and Freedoms, and that
every agency across the country under government regulation is
responsible for ensuring this access. In addition to hospitals
this includes education, transportation systems, and government
information and communication.

"All of those long-time goals of the disability community are now
on the agenda for our courts," says David, "if Parliament and the
legislatures do not take proactive steps to address those
barriers."

As profoundly positive as the Supreme Court ruling was, not
everybody felt like celebrating. The Globe and Mail published an
editorial (October 14, 1997, "Deaf to Reason") in protest against
the ruling, declaring that magistrate Gerard La Forest had "taken
leave of his senses, and the rest of the court" -- that would be
all eight other Supreme Court Judges -- "joined him."

The editorial trivializes the needs of people who are Deaf. It
even questions, repeatedly, the level of power given to the
Supreme Court, implying that such decisions should not override
elected government. "The Court’s decision, and others like it,
threatens Canadians not just as taxpayers, but in a capacity far
more precious: as democrats," it states.

"...What was this case even doing in court?"

Many Canadians already know the answer to this. If nothing else,
the Globe s editorial served as a target against which advocates
and concerned citizens from coast to coast could take aim. The
letters poured in. People who spoke out included James Roots from
the Canadian Association of the Deaf, who asks: "Why should
government services be provided only to advantaged groups?" and
Chief Commissioner Michelle Falardeau-Ramsay of the Canadian
Human Rights Commission, who writes: "The ruling is totally in
keeping with human rights principles that have long been accepted
not only in Canada, but also in... many other countries."

Many other individuals wrote in as well in support of the Supreme
Court ruling. And this is just the visible tip of the iceberg:
Seventeen per cent of Canada s population who have disabilities,
not to mention their families, friends, and entire support
network, have just cause to celebrate that we have a Charter of
Rights and Freedoms. It is a charter which guarantees equality,
regardless of ability -- or disability.