Access to Justice and Persons with Disabilities
Who Are Persons With Disabilities?
For the purposes of this discussion, the meaning of “disability” includes not only a consideration of the type of disability experienced but also the concept of the “social model of disability.” The social model of disability is based on the premise that “disability is the result of the interaction between a person’s functional limitations and barriers in the environment, such as social and physical barriers, that make it harder to function on a daily basis”. This model views disability as a social disadvantage imposed on a person by an unsupportive environment: Statistics Canada, Canadian Survey on Disability, 2012: Concepts and Methods Guide: online, Statistics Canada http://www.statcan.gc.ca/pub/89-654-x/89-654-x2014001-eng.htm; see also Law Commission of Ontario, A Framework for the Law as it Affects Persons with Disabilities - Advancing Substantive Equality for Persons with Disabilities through Law, Policy and Practice, Final Report (September 2012) [LCO Disabilities Report]: online, Law Commission of Ontario, http://www.lco-cdo.org/persons-disabilities-final-report.pdf.
The Canadian Survey on Disability, Canada’s most recent survey of persons with disabilities, adopts the social model of disability. It also describes disability according to ten types: seeing, hearing, mobility, flexibility, dexterity, pain-related, learning, developmental, mental health-related, and memory; the severity of the disability: mild, moderate, severe, and very severe; and the impairment or limitations due to the length of time it is experienced, as well as limitation in daily activities: Statistics Canada, The Canadian Survey on Disability, 2012- A Profile of Persons with Disabilities aged 15 years or older, 2012 [Statistics Canada 2012 Profile of Disability], online, Statistics Canada http://www.statcan.gc.ca/pub/89-654-x/89-654-x2015001-eng.htm#a0.
The Statistics Canada 2012 Profile of Disability Canada reports that 3.8 million people (13.7%) aged 15 years and older, reported having a disability. Approximately 370,000 (12.5%) resided in Alberta.
What Does Access To Justice Mean For Persons With Disabilities?
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Numerous studies, reports and articles discuss the meaning of access to justice as it has evolved over time. They are discussed here: http://www.aclrc.com/what-is-access-to-justice/. The meaning changes depending upon the circumstances of those who are seeking justice. Many persons with disabilities experience disproportionately greater disadvantages, compared with persons without disabilities and those in the mainstream of society. Their disadvantages prevent or make it more difficult for them to participate in society, and they therefore often live at the margins of society. Like other marginalized groups discussed under this heading, access to justice must be viewed from their unique perspective.
For persons with disabilities, access to justice means achieving substantive equality. From a broad perspective, substantive equality is rooted in the fundamental principles of respect for human dignity and worth. It means having the opportunity to participate in and live in a society whose structures and organizations include them. More narrowly, for persons with disabilities, access to justice means being able to invoke and participate in the justice system, obtaining a fair result when they do, and having their unique circumstances recognized and respected by the justice system. The justice system is not confined to court processes but applies to the entire system by which law and legal systems are designed, implemented, and operated.
This concept of access to justice recognizes that factors outside the law can make even "good" law inaccessible, and that a problem that has been framed as legal, may really be about other conditions affecting a person that are outside of the law: Patricia Hughes, Advancing Access to Justice through Generic Solutions: the risk of perpetuating exclusion, 31 Windsor Yearbook of Access to Justice 1 (2013) [Hughes, Access to Justice and Generic Solutions], online http://ojs.uwindsor.ca/ojs/leddy/index.php/WYAJ/article/view/4308.
Foundational Laws Affecting Persons With Disabilities
Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the Charter], online http://canlii.ca/t/ldsx.
The Charter is a bill of rights that forms part of Canada’s constitution and protects individual rights and freedoms from unreasonable and unjustified actions by federal and provincial governments. The Charter is different from human rights statutes, discussed below, which protect individuals from discriminatory actions by governments and private actors.
Subsection 15(1) of the Charter guarantees Canadians “equality rights.” It guarantees that every individual is “equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination, and in particular “without discrimination based on …mental or physical disability.” Subsection 15(2) protects laws, programs or activities from being found unlawful under s 15(1) if they have as their object the improvement of the condition of persons or groups that have experienced disadvantage based on a number of grounds, including mental or physical disability. Section 52 of the Charter provides that any law that is inconsistent with the Charter’s provisions is, to the extent of the inconsistency, of no force or effect.
More information about rights under the Charter may be found here: http://www.aclrc.com/how-do-i-make-a-charter-claim/ and here: http://www.aclrc.com/starting-a-charter-claim/.
Alberta Human Rights Act, RSA 2000, c A-25.5, online at http://canlii.ca/t/52kdw.
The AHRA protects individuals from discrimination by the Alberta government or persons in Alberta’s private sector based on a number of grounds, including on the basis of physical disability or mental disability, and in respect of the following activities: notices (including newspaper ads, posters, publications, etc.); goods, services, accommodation or facilities customarily available to the public; employment practices or employment advertising; tenancy; and membership in a trade union.
More information about rights under the AHRA may be found at: http://www.aclrc.com/alberta-human-rights-commission/.
Canadian Human Rights Act, RSC 1985, c H-6, online, http://canlii.ca/t/52c3f.
The CHRA applies to the actions of the federal government and businesses and other entities regulated by the federal government. The CHRA also protects individuals from discrimination based on a number of grounds, including on the basis of physical and mental disability, in respect of the following activities: goods, services, accommodation or facilities customarily available to the public; tenancy; employment practices or employment advertising; membership in employee organizations; notices (including newspaper ads, posters, publications, etc.); harassment; and retaliation.
Convention on the Rights of Persons with Disabilities, 13 December 2006, GA Res 61/106, UNGAOR, 61st Sess, UN Doc A/RES/61/106 (entered into force 3 May 2008, ratified by Canada on 11 March 2010) [UNCRPD]: online http://www.un.org/Docs/asp/ws.asp?m=A/RES/61/106.
There are a number of international documents protecting the rights of persons with disabilities. The most recent and comprehensive is the UNCRPD. The UNCRPD codifies the commitment of the international community to recognize the rights of persons with disabilities and was ratified by Canada on March 11, 2010.
Article 13(1) of the UNCRPD requires parties to ensure effective access to justice for persons with disabilities, including through the provision of accommodations, in order to facilitate their effective role as direct and indirect participants in all legal proceedings.
Article 33 of the UNCRPD provides for national implementation and monitoring to address the implementation of the UNCRPD. States who are parties to the UNCRPD are to develop a framework (or strengthen existing ones) to promote, protect and monitor implementation of the UNCRPD.
It is a cornerstone of human rights law that governments and private persons governed by that law have a duty to take positive action to ensure that members of disadvantaged groups, such as persons with disabilities, benefit equally from services offered to the general public. This concept is expressed as the duty of reasonable accommodation. Accommodation means making changes to certain rules, standards, policies, workplace cultures and physical environments to ensure that they don't have a negative effect on a person who is protected from discrimination under human rights laws. Steps to accommodate must be taken to the point of undue hardship. Undue hardship occurs if accommodation would create onerous conditions for an employer or service provider, for example, intolerable financial costs or serious disruption to business. For more information respecting the duty to accommodate, see the Alberta Human Rights Commission [AHRC] website, online https://www.albertahumanrights.ab.ca/publications/bulletins_sheets_booklets/bulletins/Pages/duty_to_accommodate.aspx.
The foregoing legislation has been very important in advancing the rights of persons with disabilities, articulating the right to inclusion and participation, and advancing the principle of accommodation. However, there are limits to a court-based advocacy approach to access to justice.
Persons with disabilities and other groups formed to protect and advance their rights have instituted or been involved in many court cases in an attempt to redress harmful laws, policies and actions that impact persons with disabilities. Cases that challenge government action trigger the Charter. Most often, these cases fall under s 7 (the guarantee to life, liberty and security of the person) or s 15 (the equality guarantee). Persons with disabilities and disability advocacy groups have also advanced court cases under human rights legislation. These cases have had mixed success. There have been some important wins, and some heavy losses. The case law is too extensive to discuss in this section. An excellent review of Canadian court decisions interpreting the Charter and human rights legislation in respect of the rights of persons with disabilities can be found in an article by Yvonne Peters and Debra Parkes, Making Poverty a Human Rights issue for People with Disabilities Related Documents (November 2014): online, Council of Canadians with Disabilities, http://www.ccdonline.ca/en/socialpolicy/poverty-citizenship/legal-protections/making-poverty-a-human-rights-issue-for-people-with-disabilities.
The Council of Canadians with Disabilities also has an annotated bibliography of literature written between 1985 (the year Canada’s constitutional equality rights came into force) and 2009 addressing themes such as: disability and equality rights, social and economic rights, and key topical areas such as income assistance, employment, housing, health care, and education, among others: Council of Canadians with Disabilities, Canadian Legal Literature Addressing Social and Economic Rights of People with Disabilities: An Annotated Bibliography (May 2009): online, Council of Canadians with Disabilities http://www.ccdonline.ca/media/socialpolicy/CURA-annotated-bliography-sept2-2010.pdf.
Barriers To Access To Justice
Barriers to access to justice are those that prevent or make it difficult for persons with disabilities to achieve substantive equality.
Persons with disabilities are not a homogenous group and this results in a complex web of factors creating barriers to accessing justice. Their experience of disability and therefore the barriers they face differ because of their disadvantaged social and economic conditions; the additional disadvantages they may experience because of their identification with other groups, for example, ethnic groups; further disadvantages they may experience due to the status they are accorded within these groups, for example, status resulting from age, gender, and sexual orientation; the type and severity of the disabilities they experience; and other disadvantages experienced because of the way that laws are written and implemented.
Barriers Resulting from Social and Economic Conditions
A 2012 Canadian Human Rights Commission Report on the implementation of the UNCFPD in Canada presents a national portrait of people with disabilities compared to people without disabilities, based on the following seven dimensions of well-being set out in the UNCFPD, and considered critical from an equality rights perspective: economic well-being, education, employment, health, housing, justice and safety, and political and social inclusion: Canadian Human Rights Commission, Report on Equality Rights of People with Disabilities (July 2012) [CHRC 2012 UNCFPD Report], online, Canadian Human Rights Commission http://www.chrc-ccdp.gc.ca/sites/default/files/rerpd_rdepad-eng.pdf.
Despite the differences of persons with disabilities, there is a general commonality of experience in respect of these seven UNCFPD indicators of well-being.
Persons with disabilities experience disproportionately lower levels of income, education, health, employment, housing, justice and safety and political and social inclusion, compared with persons without disabilities. The combined effect is that persons with disabilities are systematically blocked from or denied full access to various rights, opportunities and resources that are generally available to members of society that do not experience disability and belong to the “mainstream” of society. As access to such resources is fundamental to integration within the larger society, persons with disabilities often live at the margins of society.
This section examines how the first seven dimensions of well-being set out in the UNCFPD affect access to justice for persons with disabilities.
Persons with disabilities have one of the lowest incomes in Canada.
Canadians with disabilities have significantly lower median income than persons without disabilities: for persons with disabilities aged 15 to 24 years, $4,740—69% of that reported by persons without disabilities ($6,870); for persons aged 25 to 44 years, $21,480—57% of that reported by those without disabilities ($37,560); for persons aged 45 to 64 years, $22,890—56% of that reported by those without disabilities ($40,910); and for persons aged 65 to 74, $22,290—87% of that reported by those without disabilities ($26,170). The gap between the income of persons with disabilities and those without disabilities almost disappears at age 75 years of age but continues to be low—$21,070 versus $22,920: StatsCan 2012 Profile of Disability.
The lower incomes experienced by persons with disabilities affect every other dimension of well-being. It creates a range of barriers for accessing justice, including most obviously a lack of resources for obtaining legal advice and representation. It also results in persons with disabilities being disproportionately affected by laws, programs and policies that address issues related to low-income, such as income support programs and social housing: LOC Disability Report at 36.
Persons with disabilities have lower levels of education than persons without disabilities.
Almost 80% of working persons (those aged 25 to 64) have at least a high school diploma, compared with 90% of those without disabilities; 19% of persons with disabilities had less than a high school diploma, compared with 9% of those without disabilities; 25% of persons with disabilities had no high school diploma, compared with 13.5% of persons without disabilities; and 16% of persons with disabilities had at least a university certificate, diploma or degree at bachelor’s level, compared with 31% of persons without disabilities: StatsCan 2012 Profile of Disability.
Limitations in education obviously have a significant effect on opportunities for employment and financial security. They also affect the ability of individuals to access and understand information about the law, to identify options for securing their rights, and to effectively advocate for themselves: LOC Disabilities Report at 36–37.
Persons with disabilities face more challenges in the labour force than do persons without disabilities. Compared with persons without disabilities, those with disabilities have lower employment rates, lower levels of compensation, and weaker levels of job tenure.
The employment rate for working-age Canadians (ages 15 to 64) with disabilities was 49%, compared with 79% for those without disabilities. This employment rate drops dramatically as the severity of disability increases. Employment rates also decrease with age: StatsCan 2012 Profile of Disability.
Persons with disabilities report experiencing the following employment barriers: (1) need for reduced or modified hours; (2) need for workplace accommodation which is greater the more severe the disability; (3) barriers to finding work or advancing in employment; (4) lack of training and/or experience; (5) perceived discrimination: Matthew Till, Tim Leonard, Sebastian Yeung & Gradon Nicholls, A Profile of the Labour Market Experiences of Adults with Disabilities among Canadians aged 15 years or older (December 3, 2015): online, Statistics Canada, http://www.statcan.gc.ca/pub/89-654-x/89-654-x2015005-eng.pdf.
Reports from Canadian human rights commissions, including the AHRC, discussed below, indicate that discrimination in employment based on disability is not only a perceived problem, but a real one.
Work allows people to escape poverty. It is required in order for people to access many societal benefits, such as health and Canada Pension Plan benefits. It allows people to make a substantive contribution to society and is therefore necessary to achieve social inclusion and participation. The workplace barriers that persons with disabilities face are therefore critical barriers to their overall well-being: Ravi Malhotra, The Implications of the Social Model of Disablement for the Legal Regulation of the Modern Workplace in Canada and the United States, (2009) 33 Man. L.J. 1, online https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2198027.
By definition, persons with disabilities experience poorer health than persons without disabilities.
There is evidence that marginalized groups, including persons with disabilities, tend to experience poorer health outcomes, and widespread agreement that disparity in health outcomes is largely due to the social determinants of health, which are the poorer economic and social conditions experienced by them: Robin L. Nobleman, Are Health Problems Legal Problems in Disguise?, (2014) 21 Health L. J. 49: online, CFCJ, http://www.cfcj-fcjc.org/a2jblog/are-health-problems-legal-problems-in-disguise.
The Canadian Community Health Survey is an annual cross-sectional survey that collects information related to the health status, health care use and health determinants of the Canadian population aged 12 and older in the 12 months preceding the survey. The 2014 Survey reveals that persons with disabilities experience a greater incidence of unmet health care needs than persons without disabilities. Across the ten Canadian provinces, those with lower incomes were more likely to have reported an unmet health care need than those with middle or higher incomes. Other characteristics were also associated with higher rates of unmet healthcare needs. For example, not having a regular medical doctor, being an Aboriginal person, being an overnight patient at a healthcare facility, or having at least one chronic condition (including mental and physical disabilities): Statistics Canada, Canadian Community Health Survey: Unmet health care needs, 2014 [StatsCan 2014 Canadian Community Health Survey]: online, Statistics Canada http://www.statcan.gc.ca/daily-quotidien/160209/dq160209d-eng.htm.
A recent report on homelessness from Alberta, Human Services, confirms that the homeless in Alberta include people with mental illness, addiction, or physical illness and adults with disabilities and few supports or resources: Alberta Human Services, Alberta’s Challenge: online, Alberta Human Services, http://www.humanservices.alberta.ca/homelessness/14602.html. Homeless people with disabilities will face the added access to justice barriers discussed here: http://www.aclrc.com/homelessness-and-access-to-justice/.
This homeless population does not include those who suffer from “hidden homelessness”. About 2.3 million Canadians aged 15 and over (8%) had to temporarily live with family, friends, in their car or somewhere else because they had nowhere else to live. This situation is referred to as "hidden homelessness" and does not include living on the streets or in shelters. Persons with disabilities are more likely to report having experienced hidden homelessness. Those with a psychological illness (21%) or a learning disability (20%) and those with multiple disabilities were particularly at risk. Specifically, those who reported at least three disabilities were four times more likely to have experienced hidden homelessness (26%) compared to those with no reported disability (6%): Statistics Canada, Study: Hidden homelessness in Canada, 2014: online, http://www.statcan.gc.ca/daily-quotidien/161115/dq161115b-eng.htm.
Safety and Justice
The CHRC 2012 Report on Equality Rights states that both men and women with disabilities reported experiencing greater emotional or financial abuse by a spouse/partner during their lifetime than persons without disabilities. Women with disabilities were significantly more at risk than men with disabilities and than men or women without disabilities. There were more hate crimes reported by adults with disabilities compared to adults without disabilities. Women with disabilities reported experiencing proportionally greater violent assault. Persons with disabilities also reported feeling more vulnerable to crime: CHRC 2012 UNCRPD Report, Chapter 7.
The LCO Persons with Disabilities Report also found that persons with disabilities are at greater risk of violence and abuse than persons without disabilities. Reasons for this may result from the fact that they are targeted because their disability makes it more difficult for them to complain. It may be because persons with disabilities are more likely to live in unsafe living conditions because of their lower economic resources. Disability may also reduce the options for escaping violence: LCO Persons with Disabilities Report at 37.
The LCO Persons with Disability Report also found that women with disabilities experience a much higher rate of abuse of all types compared to women without disabilities and compared to men with disabilities. As a result, women with disabilities have more difficulty in leaving abusive situations, let alone taking legal action against their abusers. Women’s shelters and transition houses may not be physically accessible to women with disabilities. As a result, women with disabilities may experience disproportionately higher barriers to accessing justice: LCO Persons with Disability Report at 85.
Marginalized persons, including persons with disabilities, that experience violence will be disproportionately powerless compared to those without disabilities in accessing laws and legal polices and procedures meant to protect them from violence: LOC Disabilities Report at 37.
Political and Social Inclusion
The CHRC 2012 Report on Equality Rights reports there are no major differences in the voting patterns of adults with disabilities compared to those without disabilities. However, a lower proportion of adults with disabilities, aged 15 to 64 years, voted in municipal, provincial and federal elections, compared to adults without disabilities. The Report states that there was little difference in the sense of inclusion reported by persons with disabilities and persons without disabilities.
However, the LCO Report on Disabilities reveals many barriers to inclusion experienced by persons with disabilities.
Barriers Resulting from Identification with Other Communities
The experience of disability will also vary depending on how it intersects with other aspects of identity. The disadvantages and marginalization experienced by persons with disabilities, and therefore the barriers to accessing justice they experience, will be heightened depending upon whether they also belong to certain other groups, for example, ethnic groups, and on their status within those groups, for example, status accorded as a result of age, gender, and sexual orientation.
It is therefore important for law and access to justice policy-makers to take into account differences within the disability community, as well as differences between persons with disabilities and those without disabilities.
Some examples of the additional disadvantages experienced by persons with disabilities belonging to various other groups follow.
Aboriginal Persons and Other Visible Minorities
Aboriginal persons face many serious and chronic health issues: Statistics Canada, Health indicators by Aboriginal identity, 2011 to 2014: online, Statistics Canada http://www.statcan.gc.ca/daily-quotidien/161209/dq161209e-eng.htm. Aboriginal persons also face disproportionately higher barriers to access to justice compared to other persons in Canada. For the additional barriers to justice experienced by Aboriginal persons see the discussion here: http://www.aclrc.com/access-to-justice-and-aboriginal-communities/.
An analysis of the experiences of visible minorities with disabilities compared with persons with disabilities who are white revealed the greater difficulties faced by visible minorities with disabilities in accessing economic and social resources: Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, (2010) 2 Georgetown Journal of Law & Modern Critical Race Perspectives 209.
Women with Disabilities
Women with disabilities also experience greater disadvantage than men with disabilities and than women or men without disabilities. Women have a higher prevalence of disability in almost all age groups than men and are more likely to live with severe or very severe disabilities: Statistics Canada 2012 Profile of Disability.
As discussed above, women with disabilities are also more likely to be victims of violence.
Elders with Disabilities
The experience by persons with disabilities in different age groups is also illustrative. Persons with disabilities are older than those without disabilities. More than 40% of persons with disabilities are aged 55 to 64, compared with 21% of their counterparts without a disability. These age differences may affect employment rates, since the rates go down significantly after the age of 55: Statistics Canada 2012 Profile of Disability.
Other similar and dissimilar experiences of older persons with and without disabilities are discussed in the LCO Persons with Disabilities Report at 14–16. For example, some people are born with disabilities or become disabled during their younger life. Others develop disabilities only as they enter old age. This may affect their ability to deal with legal problems. For example, those that experience a disability early on in life may have developed the skills and supports they need to more effectively interact with the justice system compared to those who become disabled during old age.
For a discussion of the barriers to access to justice faced by elders see: http://www.aclrc.com/new-page-30/.
Refugees and Immigrants with Disabilities
Refugees and immigrants with disabilities are particularly vulnerable in their interactions with the justice system.
Persons can be excluded from entering Canada if their health could be expected to place excessive demands on Canada’s health or social services: Mark C. Weber, Immigration and Disability in the United States and Canada, from the Selected Works of Mark C. Weber, (2015) 32 Windsor Y B Access Just 1 (June 13, 2016): online http://works.bepress.com/mark_weber/18/; and Valentina Capurri, The Medical Admissibility Provision vis-à-vis the Charter of Rights and Freedoms, (2012) 16:1 Left History 91 (the author notes that the removal of immigrants on disability-related grounds may be contested under the Charter but litigants appear unwilling to make the argument, perhaps because of fear it would not succeed.)
Refugees tend to experience more chronic health issues because of the conditions under which they have fled their countries of origin. For a discussion of the barriers to access to justice faced by refugees and certain other new immigrants see: http://www.aclrc.com/access-to-justice-new-canadians/.
Barriers Arising from the Type of Disability Experienced
The type of disability experienced by persons with disabilities may raise further barriers in accessing justice.
Persons with different types of disabilities will encounter different types of attitudinal, physical or institutional barriers depending upon the type, severity and duration of the disability.
For example, persons with mental disabilities, particularly those that experience cognitive disabilities, can be faced with significantly greater disadvantages than persons with other types of disabilities. One of the fundamental barriers to accessing justice for the general public is the difficulty in dealing with the complexity of the law. This barrier is magnified for persons with cognitive impairments that affect their ability to acquire or understand information.
Persons with cognitive impairment may not have the capacity to understand that they have rights or remedies under the law. Studies have shown that persons with cognitive impairments do not report being victims of crime because they are not aware that there are laws to protect them against victimization. Similarly, remedies such as victim’s compensation were not accessed because persons were unaware that they were entitled to make such claims: A. Gray, S Forell, and S Clarke, Cognitive impairment, legal need and access to justice, Justice issues paper 10, Law and Justice Foundation of NSW, Sydney (2009) [Gray, Forell & Clarke] online at http://www.lawfoundation.net.au/ljf/app/4016D540ECE363B3CA25756F001DEE70.html#bmk_fnote42.
Persons with mental disabilities may find it difficult to communicate their needs or to understand the information they are given. People in charge of implementing laws and policies may misunderstand or fail to recognize that persons with disabilities are experiencing cognitive problems which prevent them from understanding the information they are being given. Studies have revealed that persons with cognitive disabilities have difficulty telling their stories and that lawyers face challenges in advising clients because of lawyers’ inability to understand the communication and comprehension levels of a their clients. This can be aggravated where lawyers are inexperienced, pressed for time or influenced by preconceived ideas about dealing with persons with mental disabilities: Gray, Forell & Clarke.
It can often be difficult for police, lawyers and other persons working in the legal system or for persons working in systems interacting with the legal system to identify that a person has a cognitive impairment. This can result in a number of barriers to access to justice resulting in such persons being denied the legal rights to which they are entitled: Gray, Forell & Clarke.
Persons with physical disabilities will often face physical barriers to accessing justice. For example, those with mobility, dexterity, flexibility or pain-related disabilities may have difficulty accessing facilities to transport them to places where legal problems are resolved. Institutions that administer and enforce laws may not be physically accessible. Informational materials may not be provided in formats that are accessible to persons with sensory disabilities. Service providers may not be trained to provide services to those with communications disabilities.
Barriers Arising Inside the Legal System
Numerous studies have identified barriers to accessing justice that arise inside the legal system. This section discusses the barriers uniquely or disproportionately affecting persons with disabilities.
Laws of General Application
Persons with disabilities are affected by many laws of general application, including employment, family, housing, labour relations and social assistance laws.
There is a tendency to overlook the very existence of persons with disabilities when developing laws of general application, in the sense that the laws may fail to take into account the ways in which those with disabilities are uniquely affected. An assumption is made, often unconsciously, that only those who are “able” or in the “mainstream” of society will access the law. As a result, the law is designed to include only those who fall within the “norm” and excludes persons with disabilities. This can result in unanticipated and disproportionately negative effects on persons with disabilities: LCO Disabilities Report at 39–42.
For example, in Eldridge v British Columbia (Attorney General), deaf persons who communicated through sign language sought health care services through a hospital that did not provide sign language interpretation. As a result, unlike other members of the population who were not deaf, deaf persons were unable to fully communicate with the health professionals attending on them. Their inability to obtain health services resulted from a failure to consider their existence and needs. The Supreme Court of Canada ruled that medicare and hospitalization legislation under which the health services were granted violated the equality rights of deaf persons under the Charter, as without sign language interpretation, they were not able to receive the same health-care services as hearing persons. The Court ruled that where governments provide a service, they must take steps to ensure that disadvantaged groups are equally able to benefit from those services: Eldridge v British Columbia (Attorney General),  3 SCR 624, online: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1552/index.do.
Another example relates to the provisions in the Alberta Evidence Act [AEA] regarding the manner in which persons may give testimony. Currently, the AEA provides that witnesses can communicate through speaking. Persons with speech disabilities may not be able to communicate through speech but can communicate through other means, for example, by using devices. The Alberta Law Reform Commission [ALRC] has recommended that the AEA be amended to include provisions allowing a witness with a disability affecting communication to communicate in any manner that is intelligible, and that the means of communication should not affect the determination of the witness’s competence: Alberta Law Reform Commission, Competence and Communication in the Alberta Evidence Act, Report for Discussion 27 (August 2015) [ALRC AEA Report] at 37, online, Alberta Law Reform Commission www.alri.ualberta.ca/docs/rfd027.pdf.
Laws Specifically Targeting Persons with Disabilities
Members of the public face many common barriers resulting from the complexity, overlap and fragmentation of laws, systems and bureaucracies that they must deal with in order to access justice. However, for persons with disabilities, these barriers are disproportionately greater because they must navigate a greater number of them: LCO Persons with Disabilities Report at 54–58.
As noted above, because of the disadvantaged economic and social conditions faced by persons with disabilities, they are affected by a greater number of laws. These laws are complicated, lengthy and technical, and create extensive bureaucratic structures. The laws may overlap or interact in complicated ways. Because they have evolved over time, they may be fragmented, inconsistent and contain gaps. Persons with disabilities report that it requires considerable effort and expertise to understand and effectively navigate these laws. As a result, they may be precluded, have difficulty or be discouraged from accessing the benefits that these laws are intended to provide: LCO Disabilities Report at 48–49.
Power Imbalances Between Persons Administering Laws, Policies, or Bureaucracies and Persons with Disabilities
Many persons with disabilities rely on services and supports to assist them but have far less power to secure these resources compared to the governments or organizations that administer them.
Persons with disabilities who are under another’s care or control may also be fearful of bringing an action or grievance against the person or institution that acts as their decision-maker or caregiver: Gray, Forell & Clarke.
Canadian studies indicate that some Canadians, particularly those with fewer resources and marginalized groups, do not view the justice system as fair, accessible or reflective of them or their needs: Trevor C.W. Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report [2016 Everyday Legal Problems Overview], 2016 Canadian Forum on Civil Justice, Toronto, Canada: online CFCJ http://www.cfcj-fcjc.org/sites/default/files/Everyday%20Legal%20Problems%20and%20the%20Cost%20of%20Justice%20in%20Canada%20-%20Overview%20Report.pdf.
Lack of Government Funding to Ensure Appropriate Functioning of Legal, Economic, and Social Benefits
Governments fund legal, economic, and social assistance programs accessed by persons with disabilities. If these programs are not sufficiently funded, persons with disabilities will not be able to access the assistance that these programs are intended to provide. Persons who do not rely on this type of government funding are not affected by lack of funding.
Persons with Disabilities Face much Higher Levels of Discrimination Compared to Persons without Disabilities
For many persons with disabilities in Canada, discrimination is a common occurrence.
The 2015 Canadian Human Rights Commission report on the implementation of the UNCFPD in Canada concludes that persons with disabilities continue to be marginalized in Canadian society. It states that, across the board, Canadians with disabilities face disproportionately higher levels of discrimination in employment and when receiving services. During the five-year period, from 2009 – 2015, covered by the Report, discrimination on the basis of disability was the most frequent type of complaint received by all Canadian human rights tribunals. Approximately 50% of the complaints received during that time were based on grounds of discrimination on the basis of disability. In Alberta, complaints citing discrimination remained between 45% and 51% and discrimination in employment accounted for 97.5% of the complaints: Canadian Human Rights Commission, The Rights of Persons with Disabilities to Equality and Non-Discrimination (December 2015): Canadian Human Rights Commission, online, http://www.chrc-ccdp.gc.ca/eng/content/rights-persons-disabilities-equality-and-non-discrimination [CHRC 2015 UNCFPD Report].
The CHRC 2015 UNCFPD Report concludes that the barriers that persons with disabilities face in accessing human rights justice are significant. The Report lists the following barriers reported by ARCH Disability Law Centre, a community legal clinic that specializes in defending and advancing the equality rights of persons with disabilities in Ontario: cost and difficulty in bringing such cases may be prohibitive for many persons with disabilities; complexity of complaint processes; lack of face-to-face assistance from human rights agency staff; affordability of counsel, especially in those jurisdictions that do not provide for free legal assistance in human rights complaints (though affordability of counsel is not limited to these instances only); respondents’ greater resources to undertake litigation; and delays in reaching resolution: CHRC 2015 UNCFPD Report at 27.
The CHRC 2015 UNCFPD Report warns that the Report may not provide a complete picture of discrimination experienced by persons with disabilities, for two reasons. First, experiences of discrimination may not be reported because of fear of retaliation or of being further stigmatized. Second, discrimination may be higher than reported because many instances of alleged discrimination are resolved by bodies outside of the human rights realm, for example, through grievance processes and labour relations boards, or through workplace conflict resolution mechanisms or other accommodation processes: CHRC 2015 UNCFPD Report at 27.
Moreover, because complaints proceed on a case-by-case basis, resolution of complaints of discrimination under human rights legislation will only provide effective solutions for a minority of those affected: LCO Persons with Disabilities Report at 47.
Persons with Disabilities Experience a Disproportionately Greater Number and Types of Legal Problems
Legal and non-legal problems adversely affect people’s lives and persons with disabilities experience a disproportionately greater adverse effect because of the greater number and types of legal problems they experience and because legal problems may cause non-legal problems and vice versa.
A number of large-scale national surveys have been conducted to determine what legal needs the public experiences. Legal needs surveys focus on problems that arise out of the normal activities of people’s daily lives that have a legal aspect and a potential legal solution. These problems are referred to as being “justiciable” to focus attention on problems experienced by individuals that raise legal issues, regardless of whether they recognize them as legal issues or take action to resolve them.
One paper summarizes the following important findings in connection with the unmet civil law legal needs of the poor and vulnerable:
(i) there is an important connection between unresolved legal problems and broader issues of health, social welfare and economic well-being;
(ii) age, country of birth, disability status, personal income and education level are statistically independent predictors of reporting legal events;
(iii) in some studies, gender, ethnic background and Aboriginal status were shown to influence the experience of civil legal problems;
(iv) legal problems tend to “cluster”, meaning that problems tend to co-occur and can be grouped together;
(v) people who experience one legal problem are much more likely to experience more than one and this is especially true for low income people and members of disadvantaged groups; and
(vi) while every group experiences civil needs, the poorest and most vulnerable experience more frequent and more complex, interrelated civil legal problems: Action Committee on Access to Justice in Civil and Matters, Family Justice Reform - A Review of Reports and Initiatives: Canadian Forum on Civil Justice, online http://www.cfcj-fcjc.org/sites/default/files/docs/2013/Family%20Justice%20Reform%20Review%20-%20April%2015%20Final.pdf.
The costs of everyday legal problems include money spent attempting to resolve these problems as well as intangible costs that are a direct consequence of experiencing a legal problem. These intangible costs can include decreasing physical health, high levels of stress and emotional problems, and strains on family relationships. Everyday legal problems can also result in loss of employment or housing, which can in turn result in persons accessing publicly funded services and programs such as health care, employment insurance, social services and housing subsidies: 2016 Everyday Legal Problems Overview at 12.
Research on civil legal problems experienced by Canadians highlights the relationship between legal problems and health problems. Persons with disabilities were found to be more than four times more likely to experience social assistance problems and three times more likely to experience housing related problems: Ab Currie, Civil Justice Problems and the Disability and Health Status of Canadians, Journal of Law and Social Policy 21. (2007): online, http://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?article=1012&context=jlsp.
Persons with disabilities face barriers to accessing justice because of the negative attitudes of those who design and implement laws and legal policies and practices, including those that are paternalistic, judgmental, stigmatizing, stereotyping or invalidating.
Attitudinal Barriers in the Design of Laws
Attitudinal barriers may affect how laws are designed. Laws that specifically target persons with disabilities are more likely to be designed based on negative or stereotypical attitudes, for example, paternalistic laws that remove decision-making powers from persons with disabilities “for their own good”. Such laws are often targeted at persons with intellectual or mental health disabilities and include those that result in involuntary institutionalization, forced birth control and sterilization, segregation away from the mainstream of the population and laws that otherwise deny basic rights: LCO Disabilities Report at 42.
The Medical Disability Advocacy Centre, an international human rights organization working with people with mental disabilities, lists among those more likely to face barriers to accessing justice as people subject to guardianship provisions, people in institutions, people labeled with psycho-social disabilities or intellectual disabilities, people with communication difficulties, and children. Barriers to accessing justice can arise because legal provisions may prohibit such persons from complaining or accessing a court. They can also arise because there is no legal aid to pay for legal advice and assistance, and if need be, representation: online, Medical Disability Advocacy Centre, http://www.mdac.org/en.
Laws dealing with legal capacity, decision-making and guardianship are examples of attitudinal barriers embedded in the law. These laws govern how decisions related to property, treatment and personal care are made in situations where individuals’ decision-making abilities are in some way impaired. They consist of complex frameworks through which decisions are made in such cases by substitutes, appointed in a variety of ways. These laws address both the protection of the autonomy and the risks of abuse and exploitation of individuals affected by them and therefore have a profound impact on the well-being of the individuals who fall within their scope. The Canadian Association for Community Living has raised concerns that capacity and guardianship laws may be influenced by negative stereotypes and attitudes regarding persons with intellectual or cognitive disabilities. The Law Commission of Ontario is currently working on a project to examine this and other issues related to capacity and guardianship: LCO Disabilities Report at 44–45.
Attitudinal Barriers Arising Due to the Manner in which Laws are Implemented
Attitudinal barriers may also affect how laws, legal policies and procedures are implemented. Even if a law or legal policy or practice is designed to include persons with disabilities, persons may be denied or delayed in exercising their rights under these laws because of the attitudes of justice system workers, service providers and others who implement them. Attitudinal barriers may result in persons with disabilities receiving poor treatment from those providing services, and those interpreting, applying or deciding which services will be provided or how they will be delivered.
The LCO Disabilities Report identifies the following barriers experienced by persons with disabilities because of the attitudes of those that implement the law, at 42–43: (1) heavy judgment and negative assumptions experienced by persons with mental health disabilities, particularly the homeless; (2) lack of support systems, stigma and fear experienced by persons with mental disabilities, which may also lead to increased contact with police and contribute to their criminalization; (3) reluctance to acknowledge the validity of (and therefore to accommodate) persons with disabilities, particularly those with learning, environmental, and chronic fatigue disabilities; and (4) suspicion and contempt towards persons with disabilities seeking services and supports, which may lead to persons within the legal system interpreting and applying laws in ways that frustrate or deny people’s rights to those services and supports.
Where Are We Going And What Has Been Done?
Several major initiatives have been undertaken to address the difficulties that Canadians experience in accessing justice. So far, most have only touched on the unique barriers to accessing justice faced by persons with disabilities. In order for persons with disabilities to achieve full participation and inclusion in the justice system, those who write, review, and implement laws, policies and initiatives must recognize and address their marginalized status and unique legal needs.
Fortunately, the LCO Persons with Disabilities Report and Framework should prove to be an excellent resource in assisting access to justice reformers to understand and remedy the barriers to access to justice facing persons with disabilities.
The LCO Report on Disabilities is the result of extensive surveys and research to assist persons designing, reviewing and implementing laws to understand the access to justice barriers facing persons with disabilities.
The LCO’s Framework for the Law as It Affects Persons with Disabilities, created in conjunction with the LCO Report on Disabilities, is specifically intended to assist those that create, review and implement laws, policies and initiatives in addressing barriers to access to justice experienced by persons with disabilities. It creates a common frame for discussion among all stakeholders, not just those in the legal system. It provides a set of principles for the law as it affects persons with disabilities in order to counteract negative stereotypes and assumptions and reaffirm the status of persons with disabilities as equal members of society and bearers of both rights and responsibilities: Law Commission of Ontario, Framework for the Law as It Affects Persons with Disabilities, online http://www.lco-cdo.org/en/disabilities-final-report-framework.
Other access to justice resources for persons with disabilities will be referenced in the Annotated Bibliography to this section, including resources that provide access to affordable legal services, resources that provide alternative legal services, and practical legal resources to be used by the public and those on the front lines assisting persons with disabilities to help them understand and deal with common legal problems.
Are you interested in expanding on this research? Please download our Annotated Bibliography and check out our sources to help you get started.