Using the Courts to Achieve Equity

By Yvonne Peters

In 198,, the disability rights movement made an important decision when it created the Canadian Disability Rights Council (CDRC). The purpose of the CDRC is exploration and development of legal strategies for asserting equality rights of persons with disabilities. Until that time, persons with disabilities relied on tactics such as public awareness, public education and political advocacy to overcome disability discrimination and secure social change. Although these tactics produced minor changes, attaining comprehensive systemic change remained within the confines of government reports and studies.

The proclamation of section 15 of the Canadian Charter of Rights and Freedoms, which guarantees constitutional protection for the equality rights of all Canadians, including persons with physical and mental disabilities, opened the door for persons with disabilities to bring their equality claims before the courts. That is, a law which discriminates, either by its purpose or effect, against persons with disabilities can be brought before the courts and challenged as being unconstitutional. The CDRC has the mandate to bring such challenges before the courts on behalf of persons with disabilities. However, to ensure that the equality rights of persons with disabilities are interpreted in a progressive and comprehensive manner, it is important to make strategic decisions about the types of challenges which are brought before the courts. At the outset it is important to initiate challenges which have the potential to establish legal precedence which firmly supports and articulates the rights of persons with disabilities. The case must also address systemic barriers encountered by a significant number of people with disabilities and not just the specific circumstances of an individual.

The CDRC refers to this process of case selection as "test case litigation". Since its inception, the CDRC has been inundated with requests from persons with disabilities who have been subjected to discriminatory laws or practices and who are seeking legal redress. Due to limited resources, the CDRC has only been able to tackle a handful of test cases. This has meant that a umber of important and precedent-setting cases have been forced to wait in the wings until further resources can be obtained.

The initiation of a test case frequently involves significant financial and professional resources. In preparing a case for litigation, it may be necessary to carry out in-depth legal research, develop expert evidence and prepare numerous legal documents. In addition, the case may be subjected to numerous appeals which will prolong the resolution of the case. Nevertheless, despite the laborious and time-consuming nature of test case litigation, the CDRC believes it is a valuable tool for advancing the equality rights of people with disabilities. recently, the CDRC experienced some difficulties in pursuing strategic test case litigation, particularly with respect to the adoption of new test cases.

Law Reform vs. Test Case Litigation
The flip side of test case litigation is the process of law reform. During the past year, the CDRC has spearheaded a law reform project designed to develop an omnibus bill amending legislation, to remove discriminatory barriers encountered by persons with disabilities. Clearly, the process of law reform and test case litigation are complementary legal strategies. Both strategies require a great deal of time and resources. Although this was not the original intention of the CDRC, CDRC’s litigation strategy was virtually put on hold while the Omnibus Bill was being developed.

This situation has raised some serious questions concerning the role CDRC should play with respect to future law reform initiatives. Political advocacy is a key element in a successful law reform strategy. In the opinion of some members, this does not fit within the purpose and mandate of the CDRC. The role that the CDRC should play in future law reform initiatives will be addressed at the CDRC Annual General Meeting scheduled for November 1, 1992. The discussion will focus on if and when the CDRC should become involved in the process of law reform. The dialogue will also address how such initiatives should be balanced with CDRC’s commitment to strategic test case litigation.

Budget Decision Impedes Access to the Courts
One of the most devastating blows sustained by CDRC’s strategic test case litigation was levelled by the federal government in its February 1992 budget papers. The government decided to cancel the Court Challenges Program as part of the federal budget.

The Court Challenges Program was established in 1985 to provide resources to equality-seeking groups and individuals wishing to launch a Charter challenge in the courts. The government’s commitment to the Court Challenges Program was reaffirmed in July of 1990 and given a five-year mandate. nevertheless, the government reneged on its commitment and abolished the Program halfway through its mandate. The cancellation of funds took effect immediately and automatically prohibited initiation and development of further test cases.

In response to sharp criticism concerning its actions, the government indicated that the Court Challenges Program was no longer needed, as a solid body of jurisprudence had now been established. From a disability rights perspective, this is an absurd comment. At the time, only one disability rights case had been argued before the Supreme Court of Canada. The argument that the cancellation of the Program represents a cost cutting measure is equally absurd. Approximately $2.75 million per year was allocated to the Program over a five-year period. The motives of a government which maintains it cannot afford approximately $11 million to support equality rights of disadvantaged Canadians while spending millions on a national referendum campaign is highly suspect. Without the Court Challenges Program, many disadvantaged groups and individuals will be barred from one of Canada’s most important institutions, Canada’s justice system.

In June of 1992, the Parliamentary Committee on Human Rights and the Status of Disabled Persons held emergency hearings to consider the government’s decision. On June 16, the Committee issued a report entitled "Paying Too Dearly", which recommended that the Program be reinstated or that a new mechanism be developed which would include both federal and provincial governments and the private sector. It was fervently hoped that the government would realize the importance of the Court Challenged Program and take action prior to the Program having to close its doors. However, the deadline of September 30, 1992 came and went. The government remained silent. According to Standing Order 109, the government is obligated to respond to the Parliamentary Committee’s Report by mid-November.

In a democratic society, both political and judicial institutions are equally important. Dismantling programmed which would assist disadvantaged persons to have their day in court suggests that they are second-class citizens and not entitled to such opportunities. Does this mean that the Canadian Charter of Rights and Freedoms will become the Canadian Charter for the Rich and Privileged?

It is ironic that in the first year of the federal government’s National Strategy on the Integration of Persons with Disabilities, this same government has taken steps to reduce rather than enhance the equality rights of persons with disabilities. The elimination of the Court Challenges Program, coupled with the exclusion of disability rights from the Canada Clause in the Charlottetown Accord, raises the question of just how committed the government is. Without sufficient resources, the future of the CDRC’s test case litigation strategy is at risk; this means the rights of Canadians with disabilities will remain on the margins of society.

(Yvonne Peters in the Director of the Canadian Disability Rights Council.)