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Accessible Canada Bill

Second Reading--Debate Continued

March 19, 2019


[15:44]

Honourable senators, in her speech, Minister Qualtrough said:

As our understanding of disability has evolved, the medical model is giving way to a human rights-based social model. We no longer see the individual’s disability or impairment as a barrier to inclusion; rather, it is the barriers created by society that prevent people with disabilities from enjoying their human rights on an equal basis with others.

Judith Snow would say with the culture change to one focused on inclusion and removal of barriers, not only will individuals be able to enjoy their human rights on an equal basis, but also our Canadian society will greatly benefit from the unleashing or liberating of the many gifts and contributions of these people.

Now let’s have a look at what our current statistical landscape looks like in Canada.

Right now, 22 per cent of Canadians aged 15 and older have at least one disability. We expect this percentage to increase as those of us in the baby boomer generation grow older.

Fifty-nine per cent of Canadians with disabilities are employed, compared to 80 per cent of Canadians without disabilities; 28 per cent of Canadians with a severe disability live in poverty, twice the national percentage of 14 per cent.

Disability is the most common ground for discrimination complaints to the Canadian Human Rights Commission, accounting for close to 60 per cent between the years 2013 and 2017.

Colleagues, let’s have a brief look at some of the elements of the legislation intended to address this sorry reality and deliver on Canada’s promise to increase the inclusion and participation of Canadians with disabilities and promote equality of opportunities.

Bill C-81 has four objectives: One, to shift from reactive to proactive, taking the burden off individual Canadians with disabilities in order to address systemic accessibility issues; two, provide entities under federal jurisdiction with clearly defined standards to achieve and maintain, as well as new requirements to plan and report on results. This involves the creation of the Canadian Accessibility Standards Organization or CASDO; three, ensure involvement of Canadians with disabilities is at the core of the new approach; four, report annually on results to Canadians. Therefore, accountability is built-in.

The accessible Canada act was drafted with several key principles in mind. These principles are: Inherent dignity; equal opportunity; barrier-free government; autonomy; inclusive design; and meaningful involvement.

Bill C-81 outlines seven priority areas needing to be addressed. These include: built environments such as federal buildings and public spaces; in employment, through the opportunities offered and the policies and practices in place; in information and communication technologies, by means of the content offered and the technology utilized; through the procurement of goods and services and the design and delivery of federal programs and services; in the area of transportation which includes air, rail, ferry or bus; and finally, in all means of communication.

Bill C-81 is designed to position Canada as a model for accessibility and will strengthen the existing rights and protections currently in place for people with disabilities.

Of course, more will need to be done to enable the cultural shift necessary to achieve true equality for those living with a disability.

Some important issues have been raised by advocates and critics of the bill. These are largely related to the bill not going far enough, having sufficient funding associated with its implementation, appropriate powers for certain players, coordination with the provinces and territories, needing to take into account intersectionality, sufficient attention to removing barriers for Indigenous peoples, and the need for navigational support.

The main concern I have heard, however, is the concern that we deal with this bill efficiently in order that it can be passed quickly, so that we do not miss this historic opportunity.

Before concluding, I would like to leave you with a little story by Judith Snow:

In North America the Canada geese fly south every fall and north in the spring covering thousands of miles each way. The birds flying a V-formation, with one bird in front followed by two diverging lines of flyers. The lead bird breaks the wind resistance for the two behind who in turn are shields for the bird behind each of them down to the end of the line. But in the course of each flight the leader drops out of position to go to the end of the line and to be replaced by one of the following birds over and over again. In this way no one bird is ever leader so long as to be exhausted or to deny opportunity to another bird. In turn each bird is the guide. This [is] a model of organizing a community so that the gifts of all benefit everyone.

Through this beautiful, natural metaphor, Judith Snow envisioned a society where everyone has a chance to take their rightful place and participate by contributing their gifts while benefiting from the gifts of others.

Colleagues, is this not what we hope to achieve for Canada? I believe that Bill C-81, An Act to ensure a barrier-free Canada, is a bold and practical mechanism to finally ensure that rights promised become rights lived, as my colleague Senator McPhedran said yesterday.

Colleagues, let’s move this legislation swiftly to committee so it can be studied thoroughly and the important efforts of so many can be brought to completion and ultimately to fruition. Thank you. Wela’lioq.

Hon. Patricia Bovey
[15:50]

Honourable senators, I too rise in full support of Bill C-81, the accessible Canada act.

Thank you, Senator Munson, for sponsoring this bill and for your truly moving speech that took the high road and shared your compelling personal story. We all have our own stories. My great nephew, like your son, is afflicted with Down’s. His sister was introduced in this chamber last year.

I fully agree with the principles set out in the bill’s preamble. I want to quote two passages from it:

. . . all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated without discrimination and, in particular, discrimination on the basis of disability;

And:

. . . it is essential to ensure the economic, social and civic participation of all persons in Canada, regardless of their disabilities, and to allow them to fully exercise their rights and responsibilities in a barrier-free Canada . . . .

Senators, we are lucky and privileged. I say this with the greatest respect and admiration for our colleague the Honourable Senator Petitclerc and colleagues whose mobility and access are compromised in any way. For the most part, we all have access to the fundamentals of life — sight, hearing, mobility and speech — and we are all blessed with intellectual abilities. How many of us have really thought about living our lives in the shoes of others? How many of us TABPs — temporarily able-bodied persons — have considered the impact any disability has on our energies on a daily basis, on our opportunity to partake in events, or even, as my mother used to say, the mundane mechanics of daily life. Only awareness will change societal attitudes.

I met recently with Susan Lamberd, Executive Director of Arts AccessAbility Network Manitoba. She rightly said, “Like it or not, most people will become disabled in their lifetime.”

While society as a whole is more understanding, to a degree, as to the difficulties and inabilities of others, I am always stopped in my tracks with what I see and hear. According to a Stats Canada survey, published last November, 22 per cent of Canadians, or 6.2 million people, had at least one disability. Disturbingly, as we have heard, that included 38 per cent of seniors, and over 2 million with a mental health related disability. We must rid society of all barriers, encompassing, as the bill states, the “physical, architectural, technological or attitudinal,” both in policy and practice, “that hinders the full and equal participation in society of all persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.” In other words, any visible or invisible impairment.

My friend uses a wheelchair. When wheeling home from the local Safeway last winter, his wheelchair fell over in a rut in the snow on the road — the sidewalk had not been plowed. The road was sculpted with the characteristic ice and snow ruts Winnipeg has for months every year. He fell out of his chair and was in the snow until someone came along, righted his chair and helped him back into it. Can you imagine? This is not a unique experience for him or others who use chairs.

Transit presents specific complications for those using chairs, like getting on and off the bus and whether there is room for the chair. The fact is, one cannot get on a bus unless they are able to get off at the other end. Puddles, snowbanks and curbs are barriers. My friends must plan the accessibility of the whole journey.

As for snow, how do those without sight manoeuver snowbanks on sidewalks thrown up by plows?

My inspiring young friend who is like my honorary daughter, Gem, defied all odds. She earned a kinesiology degree at the University of Manitoba. Verbal communication is difficult for her. She has never walked and she manipulates her computer with her feet. Most teachers were anything but encouraging, not fathoming her ability to attend college or university. Well, she achieved an academic high school program. We celebrated! But I was perplexed when she told me what she was going to study — kinesiology. How? I had a myriad of questions but applauded her determination and supported her any way I could. You can imagine my pride when she graduated.

Gem now plans recreation programs for Winnipeg’s St. Amant centre as a volunteer. There is no money to pay her, even with her credentials and their need. They are attempting to find funding, but something in this situation seems unfair to me.

Barriers reign regarding her care programs. Her support funding diminished when she turned 18. It was reduced again when she was no longer a student. Just because she is an adult, a trained adult, with a job — a necessary job, yet one without pay — why, I ask, does anyone think her need has diminished?

Therefore, her mother, in her 70s, must work to afford the needed care. She runs a fundraising event for the Cerebral Palsy Association of Manitoba. Founded 48 years ago, it has never received governmental support from any level of government. Last year, their stationary bike race raised $205,211.21. This year, the thirtieth anniversary of this critically important fundraising race, surpassed last year’s record in support of an organization determined to do all they can to remove barriers for equal accessibility.

By the way, it was Gem’s father who fell out of the wheelchair in the snow. His affliction is different from his daughter’s, but their determination is the same. A retired art professor and member of the Royal Canadian Academy of Arts, he continues to be a prolific print maker, exhibiting internationally, winning awards and leading workshops and mentoring other artists.

That, honourable senators, leads me to the Arts AccessAbility Network of Manitoba. Founded in 2008, they are a leader in the field of artists with disabilities, collaborating with many community organizations. Their objectives are:

To be the voice for artists and audiences with disabilities in Manitoba

To bring leadership on access and equity issues that impact the arts

To empower artists with disabilities by providing access to the resources they need to advance their artistic practice

This is exactly what Bill C-81 aims to do.

They are rightly concerned that those who need support networks and resources are often isolated at home, forced to opt out of programs because of their disability, a veritable Catch-22. They note:

Artists with disabilities are an especially vulnerable population as their needs are generally not well understood or, at times, even acknowledged by either the disability service organizations or the arts organizations, each claiming the responsibility belongs to the other. They are also reluctant to self-identify due to misconceptions and prejudices . . . . Most live below the Low Income Cut-Off.

The group includes people with MS, those who are blind, deaf or with other afflictions. Many have had their art selected for international exhibitions but because of their disabilities have not been able to attend these important career milestones. The costs were beyond their financial capabilities, as for many it takes two to go for one.

Is that equal access? No. How would you feel as one of those heralded Canadian artists, accorded with accolades, unable to attend because you could not afford to take someone with you, which you had to, or because the host centre did not have an accessible hotel?

As for accessible places in Winnipeg, or anywhere in Canada, how many commercial or alternative arts spaces are actually accessible? They may have an elevator or automatic doors, but any lip or step into an entrance is an impenetrable barrier — a barrier larger than any wall — an exclusionary barrier.

How many of our theatres, while accessible for audiences, do not have accessible stages or backstage areas for performers who use wheelchairs?

Distinguished Manitoba playwright Debbie Patterson is particularly articulate about the insights of being disabled:

I’ve been fully able-bodied and now I’m disabled. My goal is to build compassion through a clear exploration and articulation of what it means to be human. Being disabled has taught me enormous things I could never have learned without the lived experience of disability. I’ve been given insight into the aspects of the human condition I was never able to understand before. What a bitter irony it would be if my disability, which has given me these insights, was the very thing that prevented me from sharing them. When we think about access, we need to remember it’s a two-way bridge: yes, disabled people need access, but society needs access to the specific skills, insights and abilities of those who are defined as disabled. An ASL interpreter isn’t just there for deaf people, they’re translating for all of us. Universal access gets us all on the same team. We need to move forward together.

She further opined:

Whether we like to admit it or not, becoming disabled is a huge and universal fear. Fear divides us. Fear makes us mistrustful of each other. Fear allows us to draw lines between us and invalidate the needs of people on the other side of the line. . . . We all have bodies that disappoint, that fail to meet our ambitions, that break down. We all lack the ability to perceive, to see or hear all that we should. We are all imperfect and broken.

There are certainly positive stories of people who have risen above their disability. Professional actress Elizabeth Morris, introduced in this chamber last spring, is one. She wrote her MA thesis on design for accessibility, a goal of Bill C-81. She is deaf. She has performed on the stage of Stratford and was a member of the National Theatre of the Deaf in the United States. She has led numerous workshops with theatres internationally, consulted in deaf culture for live theatre and television, and this spring is performing in The Tempest at the Banff Centre. When she came to the chamber, I hired an American Sign Language interpreter so she could “see” our deliberations on ASL.

I contend we need to do more. We must address our committee accessibility. Given Ms. Morris’ international career, a Canadian arts ambassador, I had hoped she could be a witness for the Foreign Affairs and International Trade Committee’s cultural diplomacy study. But signing, I was told, could not work with our system of bilingual broadcasting. It was suggested she write a testimony. With all her daily barriers, I could not add one more thing to her already full work and performance agenda.

We must find ways to give voice to all with disabilities. I would love her to come to a Senate committee and give us guidance as to how we might open doors now that we are in our new home with upgraded technologies. My mantra for Bill C-81 is open doors for all. Too many shut in our faces.

That leads me to H’art, the Kingston arts organization which, since 1988 has been “helping adults with intellectual disabilities reach their highest potential through the arts,” in all arts disciplines — music, theatre, visual arts, dance and more. Their energy and positive results are infectious. I spoke before about this inspirational organization. Their performance of Martadella last year will be with me forever.

Many organizations are worthy of mention. The overriding message is the same: More is needed to advance accessible arts for artists and audiences — financially, attitudinally and physically. Surely we can fix those barriers and shift attitudes.

Honourable colleagues, we must level the playing field, ensuring accessibility for all, those with visible and/or invisible disabilities. The impetus for social change is societal, not individual. Disabled persons must be considered normal and be accepted and supported.

Debbie Patterson’s compassion and determination is visceral:

As an artist with a disability, I am living your nightmare. I can explore your nightmares for you. We can be united in that fear, we can use that fear to build compassion and empathy, and we can break that fear down together.

As Senator Munson noted, the cost will be more than overcome by the economic participation of all and their contributions to the GDP. How many brilliant minds have been curtailed by society’s inability to give access? What is the real cost of excluding people from contributing? The resulting well-being and sense of worth of our citizens will more than repay society.

Colleagues, please support Bill C-81. I do. So too do those living with disabilities, their families and indeed the majority of Canadians. It is time to do the right thing and require accessibility accommodations.

Hon. Judith G. Seidman
[16:04]

Honourable senators, I rise today to speak to Bill C-81, An Act to ensure a barrier-free Canada.

Over the last decade, the imperative to address the issue of accessibility has become increasingly urgent.

In 2011, the World Health Organization and the World Bank combined efforts to publish the first World Report on Disability. At its launch, the former Vice President of Human Development at the World Bank, Ms. Tamar Manuelyan Atinc, stated that this report “not only provides the first global estimate of disability prevalence since the 1970s, but also presents powerful evidence on the social and economic status of people with disabilities around the world.”

According to this report, more than 1 billion people, or about 15 per cent of the world’s population, live with some form of disability.

According to the Canadian Survey on Disability, conducted by Statistics Canada in 2012, “almost 14% of the Canadian population age 15 years or older have reported a serious difficulty or impairment due to a long-term condition or health problem.”

While it is true that many persons with disabilities can find work opportunities within their communities, most face a range of barriers, including lack of accessibility, negative attitudes and inadequate policies and standards that limit their daily functions and prevent their full participation in society.

The World Report on Disability highlights the impact of these barriers, showing that across the world, people with disabilities have poorer health, lower education achievements, less economic participation and higher rates of poverty.

The groundbreaking work on disability by the World Health Organization and the World Bank was meant to facilitate the implementation of the United Nations Convention on the Rights of Persons with Disabilities.

More than a dozen years ago, members of the United Nations General Assembly recognized the need to address the discrimination that persons with disabilities faced around the world. As a solution, they adopted the Convention on the Rights of Persons with Disabilities on December 13, 2006.

The purpose of the convention was to “promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities.”

This was significant for a few reasons.

First, the convention shifted the global perspective on disability from the usual “medical model” to the much more multidimensional “social model.” And second, it reminded states of their obligation to protect and promote the cultural, economic and social rights of all persons with disabilities.

Canada was a proud supporter of this convention and was one of the first countries to sign on March 30, 2007.

In fact, representatives from the Canadian government, Department of Foreign Affairs and International Trade, Justice Canada, HRSDC and the Department of Canadian Heritage were all involved in the international development of the convention.

In the 2008 Federal Disability Report, the Government of Canada stated that this convention was “an important means for the international community to recognize and reaffirm the need to prohibit discrimination against people with disabilities in all aspects of life.”

That is why I, alongside many other Canadians, was pleased when the Minister of Science and Minister of Sport and Persons with Disabilities introduced federal legislation, Bill C-81, An Act to ensure a barrier-free Canada, to address the challenges faced by Canada’s disability community.

Canadians with disabilities have long voiced the need for this type of legislation.

As it stands today, the existing federal legislative framework regarding disability is mostly complaint based. As a result, persons with disabilities must wage personal, time-consuming and expensive legal battles against the barriers that they are faced with in daily living.

To address this issue, the federal government announced in Budget 2016 that:

To eliminate systemic barriers and deliver equality of opportunity to all Canadians living with disabilities, [they] will consult with provinces, territories, municipalities and stakeholders to introduce a Canadians with Disabilities Act.

The Government of Canada released a report on these consultations entitled Accessible Canada – Creating new federal accessibility legislation: What we learned from Canadians, on May 29, 2017.

Between June 2016 and February 2017, more than 6,000 Canadians and 90 organizations participated in the consultation process, both online and via in-person meetings. The response was clear: There was a strong desire for new accessibility legislation that improves the quality of life for Canadians with disabilities — legislation that would take the burden off the individual, and put it on society and the system itself where it belongs.

Honourable colleagues, I recognize and fully support the need for new accessibility legislation such as Bill C-81, An Act to ensure a barrier-free Canada. However, a first analysis from my reading about this legislation, along with letters from stakeholders, leaves me with many unanswered questions and concerns. While we are only in second reading, and we will eventually hear testimony from key witnesses at committee, I would like to address a few of the issues that stand out at first glance.

To begin with, clause 2 of Bill C-81 defines the term “disability” and “barrier.” In the bill, the term “disability” is defined as:

. . . any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature. . . that, in interaction with a barrier, hinders a person’s full and equal participation in society.

The term “barrier” is defined as:

. . . anything — including anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice — that hinders the full and equal participation in society of persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.

It is important to note that the Government of Canada chose to use the same definition for the term “disability” as that used by the United Nations Convention on the Rights of Persons with Disabilities. The convention, however, does not define the term “barrier.”

While it is important to shift the language used in the medical model, I do fear that these definitions may present challenges. Will using these broad definitions make it more difficult to identify those members and groups who are truly part of Canada’s disability community and make it difficult to meet their needs? If we confuse inclusivity with effectiveness, we may fail to help the very same people that this bill is meant to help.

Second, several provinces in Canada already have accessibility legislation. For example, Quebec was one of the first provinces to adopt legislation to protect the rights of persons with disabilities. The Act to Secure Handicapped Persons in the Exercise of Their Rights with a View to Achieving Social, School and Workplace Integration was adopted in 1978 and amended in 2004, following an in-depth review by the national assembly.

The Accessibility for Ontarians with Disabilities Act became law in Ontario in 2005, which empowers the Government of Ontario to develop, implement and enforce accessibility standards in order to achieve accessibility for Ontarians with disabilities.

In 2013, Manitoba passed its own provincial accessibility legislation, the Accessibility for Manitobans Act. The structure of this legislation is similar to that of Ontario.

Nova Scotia passed the Nova Scotia Accessibility Act in 2017. Other provinces, such as British Columbia, have indicated a willingness to enact their own accessibility initiatives in the near future.

Will there be jurisdictional issues between the existing provincial laws and the federal government’s Bill C-81?

It is important to note that Bill C-81 only applies to entities and persons that are under federal jurisdiction, including Parliament, the Government of Canada, the federally regulated private sector, and the Canadian Forces and Royal Canadian Mounted Police. This means that only a small fraction of Canadians with disabilities will benefit from Bill C-81, which may create a certain inequity across the country.

Also, Bill C-81 creates quite an additional bureaucracy around accessibility. A new bureaucratic institution will include an accessibility commissioner for enforcement, a chief accessibility officer and a new Canadian accessibility standards development organization with an 11-person board of directors, including a chair and a vice-chair.

Clause 4 of Bill C-81 designates a minister responsible for this act, and clauses 11 to 16 outline the minister’s powers, duties and functions. For example, the minister is responsible for “promoting, supporting and conducting research into the identification and removal of barriers, and the prevention of new barriers.”

The Canadian accessibility standards development organization, whose would-be powers are outlined under clauses 18 to 20 of the bill, has similar responsibilities to the minister. The Standards Organization is responsible for:

. . . the promotion, support and conduct of research into the identification and removal of barriers and the prevention of new barriers . . .

Will this new bureaucracy present major administrative burdens, overlap and conflict, which may lead to serious complications and impediments?

The Council of Canadians with Disabilities addressed this concern in their open letter regarding the need to strengthen Bill C-81, stating that this legislation:

. . . wrongly splinters the power to make accessibility standards (regulations) and the power to enforce the Bill across numerous Federal agencies. This splintering will make the Bill’s implementation and enforcement less effective, more confusing, more complicated, more costly, and will increase delay.

Another notable concern is that Bill C-81 fails to introduce any timelines or deadlines. There are no dates outlined in this legislation that specify when the Government of Canada is obligated to develop and enact accessibility standards and regulations, and no timelines that will ensure proper measures are being taken to implement the Accessible Canada Bill. Even more ominous, as a result, there is little means to actually measure and thus evaluate progress.

In the open letter regarding the need to strengthen Bill C-81, the Council of Canadians with Disabilities write:

Bill C-81 requires timelines. Timelines are essential to ensure that key accessibility measures are taken. Timelines are also required so that progress on accessibility can be measured.

A budget allocation of $290 million over six years to support the implementation of accessibility standards requires clear timelines. Without them, how can we be assured that this money will benefit those it is meant to benefit?

Last, Bill C-81 empowers the federal government and various federal agencies to exempt obligated organizations from following accessibility standards. For example, clause 46 of Bill C-81 allows the Canadian Radio-television and Telecommunications Commission to exempt all its affiliated organizations from any or all accessibility plan requirements. Naturally, if the option of exemption is given, some will be inclined to take it.

In the final report on the legal analysis of Bill C-81, commissioned by the Council of Canadians with Disabilities and published on October 1, 2018, the ARCH Disability Law Centre writes that:

Any exemption would weaken the overall purpose of the ACA.

Earlier this month, I met with the Federal Accessibility Legislation Alliance to discuss their thoughts on the legislation. FALA, which is composed of 87 organizations and 92 individuals, has conducted workshops, interviews and consultations with Canada’s disability community over the last two years. Together, they came up with 12 recommendations that they feel will help strengthen the legislation.

During my meeting with these representatives from FALA, I heard about their concerns regarding the lack of timelines and the lack of effective complaints management process.

The Hon. the Speaker pro tempore
[16:20]

Senator Seidman, your time is up.

Senator Seidman
[16:20]

May I have five more minutes?

The Hon. the Speaker pro tempore
[16:20]

Is it agreed, honourable senators?

Senator Seidman
[16:20]

Most notably, they reminded me that Canada’s disability community is very broad and their needs are all unique. This makes it extremely difficult to identify only a few of these recommendations as the most pressing and valuable.

Honourable colleagues, Bill C-81 is a step in the right direction, but there are clauses of this bill that may serve to be improved.

We know that Bill C-81, as we have received it from the other place, is already an amended piece of legislation. Of the more than 200 amendments drafted and submitted to committee, 74 were accepted. While most of the amendments were technical, a select few were significant.

For example, an amendment made to clause 50 of Bill C-81 applies a three-year limit on all exemptions and ensures that all reasons given for the exemption are made public.

In addition, an amendment made to clause 5 of Bill C-81 adds the category of verbal communication as one of the main barriers that persons with disabilities face. This is particularly important because those who have a disability that affects their hearing, speaking, reading, writing and/or understanding often experience communication barriers.

Honourable senators, there is still room for improvement. I look forward to the next phase for Bill C-81, committee hearings where we can reaffirm our commitment to the United Nations Convention on the Rights of Persons with Disabilities and ensure that we have a meaningful piece of legislation, one that truly benefits Canadians living with disabilities. Thank you.