Accessible Canada Bill
Second Reading
March 21, 2019
Honourable senators, it moves me deeply to speak to Bill C-81 today. This bill, which many have described as historic, represents hope for a barrier-free Canada for people living with disabilities.
I would like to begin by thanking the bill’s sponsor, Senator Munson, for his tireless work in moving this file forward. I would also like to thank him for his remarkable speech. His work on this bill is a testament to his caring nature and his genuine respect for persons living with disabilities.
I also want to recognize Minister Carla Qualtrough, a former Paralympian, who has worked so hard on this. In 1992, the year the disability act became law in the U.S.A., we were both competing in Barcelona. I remember well the hope that bill was bringing to the world for persons with disabilities.
Yes, it took time, but finally, we have our bill, the barrier-free act, so it is a historic moment. It’s fair to say that your legacy, Minister Qualtrough, goes way beyond the medals you gave this country.
Instead of giving a speech today, I would just like to share three stories with you. In my humble opinion, these stories illustrate why we need this bill and why we must create a barrier-free Canada.
Here I go. This was 1988, my first year in college, which was five years after becoming paraplegic. This was also the year I saw the movie Wings of Desire by Wim Wenders. So at 17, I decided that learning German was a high priority. I took German class, but there was a small problem: There were four or five steps to get to that class at the end of a corridor corner. The CEGEP did great; they had a ramp. But I have to tell you the ramp was so short and so steep, it was a disaster waiting to happen. I had two options. I could ask for friends to push me up the ramp, or I could take a deep breath, roll like my life depended upon it and hope to make it to the top.
I was young. I was trying to fit in, and so I refused to ask for help. But I was determined. To go unnoticed, I would get to the class early and push up that ramp without anybody watching me and try to make it up the ramp. Sometimes it took three or four attempts.
After a while, my ego, or survival instinct, got the best of me, and I dropped out of the class; I abandoned it.
I think we can all agree that me not speaking German is not a human tragedy, but it’s easy to imagine — and this is my point — that situations like this happened and still happen to thousands of persons with disabilities, with much more serious impacts to their lives, the pursuit of their goals, the contributions they wish to bring to this country and their basic rights to accessibility.
In my humble opinion, without first removing physical, architectural and communication barriers, we can’t talk about an accessible Canada.
The goal of Bill C-81 is not only to eliminate barriers, but also to establish specific, defined, concrete standards that will make accessibility a reality. In addition, this bill makes it clear that persons living with disabilities will be part of the process every step of the way.
The stated commitment in the bill, the commitment to respect “nothing about us without us,” is crucial, in my opinion. No matter the good intentions, persons with disabilities have the lived experience and expertise to know what works and what should be done. This bill puts them at the centre of the process, as it should. This alone gives me hope.
But “barrier-free” is more than building good ramps, obviously. In fact, I would dare to say that’s the easy part. Changing attitudes is what really matters.
Let me tell you another story. My friend Cheri Blauwet is a U.S. Paralympic racer and a brilliant individual. When she retired from track, she decided she wanted to study medicine, and so she did. She is a strong, passionate woman, and in part because of the disability act in the U.S., she faced minimum architectural barriers to achieve her goal. Access was fine, and medical equipment was slightly adjusted. So she became Dr. Blauwet.
But the barrier she did not expect was that patients were thrown off by her being a doctor in a wheelchair. She had all kinds of reactions. Let me quote my favourite from a New York Times article entitled, “I Use a Wheelchair. And Yes, I’m Your Doctor.” This is Cheri being quoted:
Although my badge reading “Dr. Blauwet” and stethoscope were clearly visible, a man next to me in line said: “You look like you are doing pretty well. When are you going to be discharged?” Clearly, my wheelchair was the only thing he saw. Moreover, he equated my wheelchair with illness, rather than empowerment.
I find this example so revealing. I know for a fact that it happened to her not just one time — being taken for a patient, even wearing the badge, the white clothes and a stethoscope.
Attitude is everything. Unless we can change attitude, perception and behaviours, we cannot speak of a barrier-free Canada.
Could this bill serve as a powerful tool to help change attitudes towards people with disabilities? That is certainly its intent, and I think we have every reason to believe that it will.
I would like to wrap up my remarks by telling you about my cousin’s son, an amazing little boy named Milan.
Milan is only 8 years old. He was born with cerebral palsy, and he is a gutsy, fearless, joyful little boy. He uses two canes to walk, to play and to run. He would really want me to mention that he is the up-and-coming sledge hockey star on his team.
Last year in my home, as I watched him play with my son, running around, rough-housing, free of all fear and self-consciousness, it became clear to me that little Milan did not even think of himself as a person with a disability. Just as revealing, my little boy did not see him as a person with a disability. They were just two boys playing together.
Dear colleagues, that should be what we aim for when it comes to a barrier-free Canada.
Now, I’m not naive. I’m well aware that this bill will not magically transform the lives of every individual in Canada living with a disability. There are limits to what it can do, to its scope and to the number of people with disabilities it can benefit. Some legitimate concerns have been raised, here in the Senate and by some organizations, and we will have an opportunity to examine those concerns at committee.
So no, I’m not naive, but allow me to be hopeful — hopeful that Bill C-81 will set a solid foundation, bring forward concrete, high standards of accessibility and contribute to changing mentalities — hopeful that it will create a strong momentum and that this momentum will be embraced by provinces and territories, and that Canada will indeed gradually become barrier-free.
In the end, I’m hopeful that little Milan will be able to grow up in a country where his disability will never stop him from achieving his craziest dreams. That, dear colleagues, in the years to come, will be how we can measure the success of this bill.
Thank you.
Honourable senators, today I wish to speak to Bill C-81, An Act to ensure a barrier-free Canada. This bill was based largely on the Accessibility for Ontarians with Disabilities Act, 2005, or AODA.
The speeches we’ve heard so far on this bill have covered all the points included in this piece of legislation, so I’ll not dwell too much on that aspect. I will focus my remarks on some points that could be studied at committee.
Bill C-81 would establish the Canadian Accessibility Standards Development Organization, an independent, permanent expert body, to develop accessibility standards that would be used as a reference in drafting regulations. It establishes the position of accessibility commissioner, who will be responsible for overseeing the implementation of the bill. Bill C-81 will be supported by regulations that will detail the duties of the regulated entities and provides that the minister, the CRTC and the CTA may grant certain exemptions with regard to the production of reports.
My intervention today will offer a comparative analysis of two statutory regimes, namely Ontario’s accessibility law and Bill C-81. I will look at the duties of the entities subject to the legislation with regard to services provided to persons with a visual, hearing or language-based disability, responsibilities with regard to training people who provide services to the public, and the time frame for the implementation of this act.
I am familiar with Ontario’s accessibility law because I had to implement it at my organization. I wanted to ensure that the bill covered all the components and was an improvement over Ontario’s legislation.
The major difference between the federal legislative framework proposed by Bill C-81 and Ontario’s law is that the federal bill creates an independent, permanent expert body, the Canadian Accessibility Standards Development Organization. The mandate of this organization will be to develop accessibility standards that will be used as a reference in drafting regulations. In Ontario, the committees responsible for developing standards are created as needed by the Minister for Seniors and Accessibility.
Bill C-81 creates the position of accessibility commissioner, whose mandate is to oversee the implementation and enforcement of the bill. However, the bill does not establish a coming into force date, which makes the bill less binding and takes away the urgency of carrying out its provisions. This aspect is contrary to the provisions of the Ontario law. At an information session on February 20, the Minister of Public Services and Procurement said that such a date would have a negligible impact on the effectiveness of the legislation and is not realistic.
In my opinion, if there is no coming into force date for the act, there will be no set time frame for entities to comply with the act, and some will drag their feet. In Ontario, rolling deadlines came into force over several years, depending on the type of business or organization, which gave them ample time to comply with the legislation. It also allowed those responsible for implementing the act to monitor the situation. The same system could be implemented in the regulations and would allow for compliance indicators to be established.
Part 4 of Bill C-81 imposes various duties on regulated entities, including preparing accessibility plans, creating a feedback process, and preparing progress reports on the implementation of an initial accessibility plan. Under the new accessibility legislation, the initial accessibility plan must be adopted and published before the expiry of one year after the day fixed by the regulations, and it must contain the policies, programs and practices in relation to the identification of barriers. Updated accessibility plans must be prepared and published no later than the third anniversary of the day on which the plan was last published.
Employers must present an initial accessibility report and updated reports to the commissioner on an ad hoc basis. The regulations will provide details on the duties of entities subject to Bill C-81.
At present, we know that the regulations could be very broad in scope, given that Canadian jurisprudence takes a free hand with recognizing situations of discrimination based on disability, and that the bar for employers to claim the “undue hardship” defence is high.
As president and CEO of an Ontario entity that was subject to the Accessibility for Ontarians with Disabilities Act, I had to implement policies and procedures based on the Ontario law, make sure we were complying with the prescribed standards in every respect, and periodically submit a compliance report. For us, as employers within an entity serving the general public, the Accessibility for Ontarians with Disabilities Act could have been onerous to implement, both financially and logistically.
However, this law was actually an opportunity, because it gave us a chance to grow as individuals and to better understand the difficulties that people with disabilities face every day. We learned how to serve them better.
As Senator Petitclerc mentioned earlier, that also led to significant changes in behaviour. Ontario was the first jurisdiction in the world to require employees to take training on accessibility. There’s no such requirement in Bill C-81, but any future regulations could provide for something similar.
The employees of the Alliance des caisses populaires received the training from Le Phénix, which is, and I quote:
. . . the only provincial francophone organization working for the inclusion and the full and meaningful participation of people with disabilities in every activity sector and in all their diversity.
All the employees in my network — there were almost 400 of us — received training provided by people with a vision, hearing, language or physical disability. Relying on humour and games, these individuals showed us that even if we spoke louder, the hearing impaired would not hear any better and we should offer interpretation adapted to their needs instead. We also examined contractual agreements, and the accessibility of automatic tellers and online services. We have legal obligations we must comply with. We learned to recognize the problems that people in wheelchairs had to deal with every day, which reduced their independence. We learned not to distract guide dogs, which have a job to do and must remain vigilant for their masters. We learned about the rules that govern the provision of services and our obligations as a service entity.
I find it regrettable that the bill does not include this component. We must demystify disabilities, eliminate the associated fear and embarrassment and foster a better understanding of the barriers faced by people with disabilities every day, bearing in mind that they will receive better service.
Bill C-81 creates a tool to educate and inform organizations regulated by the new Canadian Accessibility Standards Development Organization, whose mission, as described in the text of the bill, includes the following:
[T]he dissemination of information, including information about best practices, in relation to the identification and removal of barriers and the prevention of new barriers.
I hope this tool will be just as helpful as what is currently being done in Ontario.
I invite the committee members who will be studying this element of the bill to pay particular attention to this issue. Perhaps it would be appropriate to include mandatory training in the bill. Ontario has stated that improving accessibility can do the following:
. . . create up to $9.6 billion in new retail spending and $1.6 billion in new tourism spending in Ontario over five years.
It is estimated that between now and 2025, aging Ontarians and people with disabilities will represent 40% of total income in Ontario. That’s $536 billion. It may be worth our while to take another look at the training component of the bill. If we accept the July 19 projections as valid, Ontario is demonstrating foresight in its approach to services for seniors and people with disabilities.
As is the case with many of the bills we have to vote on, we have little information about the regulations that will guide the implementation of this bill. The devil is in the details, so it is hard to decide on the scope of this legislation in terms of how it will affect the entities that must comply with it. We have to assume that if the regulations reflect the state of the law in Canada, they will cover a broad spectrum of disabilities that will ultimately determine the obligations set for the regulated entities.
Lastly, Bill C-81 gives the minister, the CRTC and the CTA the power to grant exemptions from producing reports. The Ontario law does not allow for this kind of exemption. We should better understand these exemptions to avoid creating any loopholes that could allow an entity to circumvent the law.
The existing federal accessibility legislative regime currently protects people with disabilities against discrimination under section 15 of the Canadian Charter of Rights and Freedoms and section 3 of the Canadian human Rights Act. The Charter applies to the government, while the Canadian Human Rights Act applies to private entities under federal jurisdiction. Canada is also a signatory to the United Nations Convention on the Rights of Persons with Disabilities.
The federal regime for dealing with discrimination is reactive rather than proactive. First, a violation under the Charter or the Human Rights Act must occur. Next, the person with a disability or his or her representative must file a complaint with the Canadian Human Rights Commission or the courts, which would then hand down an order or a ruling and impose sanctions on the entity that failed to meet its obligations, and remedies would be ordered. As a result, progress in this area is made one violation at a time.
On top of that, there is no third party to ensure that the rights of people with disabilities are being upheld. The burden of asserting their rights falls on the shoulders of people with disabilities who have suffered discrimination. It should be noted that disability is the most common ground for discrimination complaints to the Canadian Human Rights Commission, accounting for over 60 per cent of complaints received.
It is high time that we ended this discriminatory regime and moved on to implementing a new regime that is much better suited to today’s needs. Bill C-81 is important and necessary for ensuring that we can provide adapted and adequate services to people with disabilities. Let’s send this bill to the Social Affairs Committee to be studied further so that we can pass legislation that improves accessibility for people with disabilities.
Thank you for your attention.
Distinguished colleagues, I want to say a few words today in support of Bill C-81, An Act to ensure a barrier-free Canada, and to share a few observations and concerns that came out of various meetings I recently had with organizations in New Brunswick.
I want to begin by saying that I support this bill. It is an important and even historic step for persons with disabilities, as many of our colleagues have rightly pointed out. Since the adoption of the United Nations Convention on the Rights of Persons with Disabilities, many Canadians, especially those with disabilities, have been calling for this type of bill.
I would also like to acknowledge the robust debate in support of this bill, whose foundations and objectives reflect the very values of an inclusive Canada to which we all aspire.
Honourable senators, I want to tell you how important this bill is for my region. On one of my recent tours of the various regions of New Brunswick, I learned that my province has the second-highest rate of disability in Canada, at about 26 per cent of the population.
Creating a barrier-free Canada is, therefore, a priority for my province, which is also facing a rapidly aging population, so this proportion is sure to rise.
Although the scope of the bill is limited to the areas set out in clause 5 and the entities and persons under federal jurisdiction set out in clause 7, the accessibility bill could serve as a model or even as an inspiration for all of the organizations and entities that are not subject to this bill.
As the Honourable Senator Munson so clearly stated — and I would like to take this opportunity to thank him for his leadership on this file — this bill involves a culture change. It seems to me that this cultural shift is already well under way among the people of Canada. Now it is our turn, honourable colleagues, to make the final push to ensure that people with disabilities are fully included in our society and that the fundamental rights of all Canadians are respected.
Although I support Bill C-81 unconditionally, I did have a few concerns at first reading stage, and some organizations in New Brunswick that have been working in the field for many years also pointed out some issues to me. I would like to talk about three of those issues, namely the reality of rural areas, the terminology used in the bill, and the recognition of language rights.
I will start with the reality of rural areas.
When I met with the director of Ability New Brunswick, an organization formed in Moncton in 1956, Haley Flaro told me about the daily needs and challenges of their members. It was alarming to hear the unique challenges that people with disabilities in rural communities face.
For example, a large proportion of people with disabilities in these rural communities rely on paratransit services provided by volunteers, which the organizations indeed coordinate, to get around in their day-to-day lives. We can only try to imagine how challenging this must be for them in terms of accessibility.
Rural communities across Canada must be resourceful and act in solidarity in trying to address inaccessibility issues for people with disabilities, even within the scope of Bill C-81.
There also seems to be some concern that attention is focused on issues in major urban centres across the country, such as Montreal, Toronto and Vancouver. Yet the challenges faced by people living in rural areas are sometimes very different from those in urban areas, and they must be considered equally.
People with disabilities living in rural areas and the organizations that support them are calling for better representation under Bill C-81.
Paragraphs 23(2)(a) and 23(2)(b) of the bill state that the majority of the directors of the Canadian Accessibility Standards Development Organization will be persons with disabilities and will be representative of the diversity of Canadian society. These objectives are very laudable and should be commended. That said, given that a large number of Canadians live in rural areas where the needs and difficulties are quite different, I think it is vital to ensure they have effective representation so that their concerns are heard at all times, especially when accessibility standards are being created.
Therefore, I would like the committee that studies the bill in more detail to consider how this can be achieved and, with respect to Bill C-81, to clearly determine what would constitute effective representation of the rights and concerns of all persons with disabilities living in rural communities across the country.
The second element is the terminology used in the bill. Colleagues, after consulting several community groups, I can state that it is essential to always consider the person first, because they are not defined by their disability. As I was researching this issue, I learned about the concept of the disability creation process, which was described as follows by Dr. Patrick Fougeyrollas:
This systemic model views social participation as the result of the interaction of personal and environmental factors. A social participation or disabling situation refers to the total accomplishment of life habits, resulting from the interaction between personal factors (impairments, disabilities and other personal characteristics) and environmental factors (facilitators and obstacles).
In looking more closely at the definition of disability in clause 1 of Bill C-81, I see that it is meant to be as inclusive as possible. Indeed, it states that a disability is something that, “in interaction with a barrier, hinders a person’s full and equal participation in society.” This definition seems to correspond to an inclusive model that identifies interaction with the environment as a source of inaccessibility. To that end, wouldn’t it make sense to use terminology in this bill that perfectly reflects this concept, for example, “persons living with disabilities” instead of “persons with disabilities”?
I think we should take advantage of this highly symbolic opportunity. This would help underscore the fact that all individuals are equal and that it is our social and environmental organization that creates limitations that are incompatible with the personal abilities or factors of a portion of the population, from which the disabilities stem. I therefore encourage the committee to reflect on that issue as well.
The third and final point is recognition of language rights. As our honourable colleagues have pointed out a number of times, according to its preamble, Bill C-81 will implement the United Nations Convention on the Rights of Persons with Disabilities.
Two of the convention’s articles cover the recognition and use of sign language. The first, article 21(e), says that states parties shall recognize and promote the use of sign languages to enable all persons to exercise the “right to freedom of expression and opinion, including the freedom to seek, receive and impart information and ideas on an equal basis with others and through all forms of communication of their choice . . . .”
Article 30 of the UN convention is about enabling persons with disabilities to participate in cultural life, recreation, leisure and sport. This is crucial to ensuring social inclusion. Paragraph 4 reads as follows:
Persons with disabilities shall be entitled, on an equal basis with others, to recognition and support of their specific cultural and linguistic identity, including sign language and deaf culture.
Contrary to the requests made by various organizations and this provision of the UN convention, the government did not include in Bill C-81 any type of recognition for ASL and LSQ sign languages for people with hearing loss. While no one is asking that they be given official language status, some kind of recognition of sign languages in this bill would have ensured automatic access to interpretation services or any measures needed to uphold the rights of people with hearing loss, particularly regarding communication, one of the areas that was even included in the purpose of the act, under clause 5(c). Once again, the committee tasked with studying this bill will have the opportunity to examine this important issue.
In closing, I add my voice to that of all my honourable colleagues who, like me, would like the debate on this bill to be efficient so that it may pass as soon as possible.
My last few words are for the people living with disabilities and for all of the Canadian communities, organizations, caregivers and loved ones that support them. It goes without saying that your dedication is an inspiration to us all. We admire your determination and the way you help each other. We will look to these qualities to guide us as we do everything in our power to protect the fundamental right to equality and everyone’s right to full inclusion in our society.
My greatest wish is that we can reduce barriers across Canada for every type of disability, so that all Canadians can achieve the highest levels of excellence, just like our colleague, Senator Chantal Petitclerc, and live out their greatest dreams.
Are honourable senators ready for the question?
It is moved that the bill be read the second time.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
(Motion agreed to and bill read second time.)
