Table of Contents · Next

ONE

Human and Civil Rights

"We do not want charity or special favours and privileges; only the same basic rights and freedoms as others. We wish to be treated as equal human beings — to be able to participate in the common life, to the extent of our capabilities, without having to face unnecessary barriers to our involvement. We have the same needs and desires as anyone else — to be self-sufficient — self-determining — to have a measure of dignity and self-respect — to be contributing and responsible members of society — to enjoy the same basic freedoms, rights and responsibilities as anyone else in this country."

"We wish to live the same as the other person and expect to have to do our part for society. Why should we have to keep proving that we have a place in society when the normal person knows they have. We are all here for one reason or another; does this not mean that we should be treated as equals? But are we now? I think not, for we are laughed at, made fun of, or worse — we are pitied for pity's sake and this is not what we want. We want to do our part to help society as a whole."

"In a technological society such as ours, there is a real danger that the value placed on material progress over-rides the value of human potential and dignity."

1

AMEND THE HUMAN RIGHTS ACT TO PROTECT DISABLED PERSONS

RECOMMENDATION:

That physical handicap be made a proscribed ground of discrimination for all discrimination practices listed in the Canadian Human Rights Act, and not just for discriminatory employment practices.

That the Canadian Human Rights Act be further amended so that Tribunal orders can be made with respect to access to goods, services, facilities and accommodation, and that it include a qualification that the changes ordered by a Tribunal should not impose undue hardship on the respondent.

That mental handicaps (learning disabilities, retardation or mental illness) and a previous history of dependence on alcohol or other drugs be added to the proscribed grounds of discrimination under the Canadian Human Rights Act (CHRA). Clear Public Direction: Canadians are no longer prepared to accept this form of discrimination in any area of society. By far the most repeated request that the Committee received in its hearings across Canada was for greater protection under the CHRA. In addition, these requests were supported by representations that have been made during the past two years to the Canadian Human Rights Commission, by samplings of public opinion, and by recent legislative developments in several provinces. They all clearly point to the need for improvement under the Canadian Human Rights Act.

Invisible Disabilities: Those Canadians who are mentally ill, or who have learning disabilities, are in special need of protection because their problems tend to be invisible. As a result, there is a general lack of public understanding about the needs, abilities and problems of these individuals. The mentally ill are occasionally considered to be dangerous lunatics. This attitude is reinforced through rumours, jokes and by stereotypes presented in films and television programs. The learning disabled are sometimes branded as lazy, as having a very weak or very low intelligence. Both groups experience discrimination in a variety of everyday situations — particularly when seeking employment. Legal protection, therefore, is needed to safeguard the rights of these individuals who have special needs.

Existing Mechanism: The United States prohibits discrimination on the basis of physical and mental disability in its Rehabilitation Act of 1973. In this country, the Canadian Human Rights Act is an existing mechanism which can be used to provide similar protection for Canadians.

* * * * *

2

DIRECT HUMAN RIGHTS COMMISSION TO PROVIDE DETAILED GUIDELINES

RECOMMENDATION:

That the Canadian Human Rights Commission (CHRC), in consultation with appropriate consumer groups, develop and publish Guidelines to:

• Confirm and clarify their present administrative practice of hearing similar complaints simultaneously;
  
• Define methods of establishing "class" for beginning class action complaints to the Commission.

That the Canadian Human Rights Commission should develop precise Guidelines on the scope of "undue hardship" as an exemption from the Act; these Guidelines should be published when the Committee's suggested amendment to the Canadian Human Rights Act is passed.

Immediate Need: The Committee learned from its hearings that there is an immediate need to clarify certain legal terms used under the Canadian Human Rights Act, and to clarify procedures of "class action" as they relate to complaints made to the Human Rights Commission.

Bona Fide Requirement: "Bona Fide Occupational Requirement" means the essential education, skill or experience that is needed to do a job. Under the present provisions of the Canadian Human Rights Act, employers may use this term to discriminate against disabled persons. For example, the job description for an accounting job may list "using the telephone" as a requirement. This would automatically exclude a deaf person with accounting skills and experience. The question, then, is whether using the telephone is a bona fide requirement. An examination of the situation may show that it is incidental — and that a deaf person with the requisite accounting skills can do the job perfectly well.

The Canadian Human Rights Commission, therefore, should establish a Guideline under the Canadian Human Rights Act to make this term more precise and predictable. This Guideline should make it clear that certain practices will not qualify as "Bona Fide Occupational Requirement".

Undue Hardship: In its First Report, the Committee dealt with possible exemptions under the Canadian Human Rights Act. It recommended that a person could be exempted from having to provide goods, services, facilities, and accommodation to a disabled person if he or she could show that this would cause "undue hardship". For example, a small regional airline would not likely be expected to retrofit or renovate its existing fleet to make all equipment accessible, following the complaint of a wheelchair user. Interim arrangements — such as prearranged boarding assistance — might be accepted in this case. The airline, however, would be expected to make full changes when new aircraft were purchased, or major renovations were undertaken. Each "undue hardship" exemption would be examined carefully, in light of the Guideline. Only real cases of hardship could provide a justification for discrimination.

Avoid Controversy: Both the Canadian Human Rights Act and this exemption for "undue hardship" have the potential for creating controversies and legal haggling. There will obviously be cases where a claim of "undue hardship" is simply an attempt to avoid legal responsibilities. At the same time, there will be cases where disabled persons make unreasonable demands, charging discrimination in situations where the demand for goods, services, facilities and accommodation is clearly unrealistic.

In order to avoid such controversies, the Canadian Human Rights Commission should develop and publish precise Guidelines on the scope of "undue hardship".

Group Complaints: Complaints made to the Canadian Human Rights Commission are frequently similar to each other. Wherever possible, the Commission has followed the practice of joining them together. In addition, a group of people may bring their complaints to the Commission as a joint effort. A complaint can be made about an employment practice or policy which results in systematic discrimination.

Class Actions: A type of true "class action" is also required. In a class action, a person could make a complaint on behalf of himself and others who have the same problem and who would benefit from the success of the case. In this situation, each of the complainants must give personal authority for the suit, and must be specifically named within the class. Any class action possible before the Commission must also be permissible in other court proceedings arising from the case; for example, an appeal.

Efficient/Economical: it is clear that both of these practices — group complaints and class actions — help to strengthen the force of the complaints, and to save costs for the complainants. Both practices must be publicized, and be more frequently used.

* * * * *

3

INTRODUCE SHIFTING ONUS INTO THE HUMAN RIGHTS ACT

RECOMMENDATION:

That the Canadian Human Rights Act be amended to stipulate a shifting onus of proof so that once the complainant has made out a prime facie (reasonably believable / reasonably sound) case of discriminatory practice, the onus of proof shifts to the respondent to prove that discriminatory practices did not occur.

Shifting Onus: The principle of "shifting onus" means that once a complainant has made a reasonably believable and sound case of discrimination, the onus of proof immediately shifts to the respondent. He or she must then satisfy the Canadian Human Rights Commission (CHRC) that discrimination did not occur.

Prima Facie: This recommendation does not go as far as the Saskatchewan Human Rights Code, which places the entire burden of proof on the respondent. The complainant, under that code, does little more than lodge the complaint; the respondent must do everything else. The Committee's recommendation still requires that the complainant establish prima faciegrounds before the onus of proof shifts to the respondent.

Legal Right: The administration procedures of the CHRC already provide for a type of informal "shifting onus" in practice. However, a legal requirement of a shifting onus would make the practice a legal right for a complainant. It would also mean that a tribunal set up to inquire into a complaint must operate with a shifting onus of proof. Any court action would have to take this into account as well. Persons who make a complaint are frequently in a poor position to provide all of the evidence. The respondent, on the other hand, has the facts available to explain his or her actions. He or she should, therefore, be legally required to produce them, for adjudication of the issue.

* * * * *

4

INCLUDE PRIMACY CLAUSE WITHIN THE HUMAN RIGHTS ACT

RECOMMENDATION:

That the Canadian Human Rights Act be amended to add a primacy clause stating that, as a matter of statutory interpretation, the Act shall be applied unless Parliament expressly exempts the legislation from the Canadian Human Rights Act.

Primacy Clause: This clause would strengthen the CHRA, and bring greater scrutiny to any legislation which is discriminatory. The clause would state clearly, in the Act itself, that if there is any doubt arising in the interpretation of an existing law, such a doubt is to be resolved in favour of the CHRA. In this way, public servants who administer a law, Canadian Human Rights tribunals which decide on complaints, and the courts themselves, would be obliged to follow this rule. The clause would also require that Parliament, if it wished to pass new discriminatory legislation, to expressly exempt such legislation from the Act.

Remove Doubts: The primacy clause is not an authority to strike down inconsistent legislation. However, the wording of laws is often ambiguous, in which case the judges and lawyers follow laws of "statutory interpretation". This primacy clause would give clear, overriding direction that in any case of doubt, the interpretation which treats people in a non-discriminatory way is the proper one.

Political Difficulty: The primacy rule would require Parliament to state specifically that new inconsistent legislation must contain the words "notwithstanding the Canadian Human Rights Act". This required wording will make it politically difficult to enact any discriminatory legislation.

* * * * *

Persons who make a complaint are frequently in a poor position to provide all of the evidence. The respondent, n the other hand, has the facts available to explain his or her actions. He or she should, therefore, be legally required to produce them, for adjudication of the issue.

5

ESTABLISH POSTAL VOTE SYSTEM SIMILAR TO MANITOBA'S

RECOMMENDATION:

That the Federal Government proceed in developing legislation, together with the appropriate machinery and programs, to establish a postal vote system similar to the one that is successfully in effect in Manitoba.

Poor Accessibility: Throughout its hearings, the Committee heard complaints that the voting system throughout Canada makes it difficult for many disabled Canadians to travel to polls on election day. The one exception to these complaints was the Province of Manitoba, which has made provisions for a postal vote system for provincial elections.

Ten Days Prior: Under the Manitoba Election Act, the Returning Officer receives an application by mil at least ten days before the polling day, and then returns an initialed ballot to the voter at least seven days before the polling day. This ballot is then marked and sealed in a plain envelope, which is placed into another special envelope that is printed in the form of a certificate.

Certification: On the certificate envelope, two people must be identified: the voter, plus another voter who is authorized to vote in the same electoral division. This second person must certify that the first person's information is correct. The voter can then send the ballot and the certificate to the Chief Electoral Officer by any means before the close of the polls. In the case of postal disruptions, the ballots may be picked up by the Division Returning Officer, or be dropped off by friends or family.

Track Record: In the last Manitoba provincial election, 900 mail-in votes were received (total cast: 488,821) and were mostly from urban voters. Manitoba's Chief Electoral Officer advertised the details of the postal vote, and felt that the subsequent results were very satisfactory.

* * * * *

Throughout its hearings, the Committee heard complaints that the voting system throughout Canada makes it difficult for many disabled Canadians to travel to polls on election day.

6

CEASE THE POLICY OF CENTRALIZING POLLING PLACES

RECOMMENDATION:

That the Chief Electoral Officer be directed to immediately cease the present policy of centralizing polls and to accommodate, as fully as is reasonably possible, the mobility problems of disabled persons, including persons with disabilities due to aging.

That the Canada Elections Act be reviewed and amended to reflect the fundamental principle that elections are conducted for the convenience of all voters, including the disabled and aging; amendments should include provision for special polls at hospitals and nursing homes, the location of polls in apartment buildings, and should remove the discretionary power to centralize polls, contained in Section 33(6).

High Price: The present policy of centralizing polling places serves the needs of the office of the Chief Electoral Officer, but it ignores many of the needs of the voting public, especially those Canadian citizens who are disabled. Centralization makes it easier for electoral officers to organize the vote count, but it makes it more difficult for many votes to reach the polling place. Centralization may cut the Office of the Chief Electoral Officer's costs of running a national electoral organization, but at the price of depriving many Canadians of their votes. It is totally contradictory for the Federal Government to espouse a policy of maximum voter participation on the one hand, and a policy of restricted access to polling places, on the other. This centralization policy must cease immediately.

Community Considerations: A practice that makes more sense is to locate polling places for the convenience of sick and elderly persons, this means in their hospitals and nursing homes. For hundred of thousands of other Canadians, this means in their apartment buildings. Whatever policy is followed, it should ensure that disabled persons are provided with maximum opportunity to cast their vote.

* * * * *

It is totally contradictory for the Federal Government to espouse a policy of maximum voter participation, on the one hand, and a policy of restricted access to polling places on the other.

7

ESTABLISH ORIENTATION SESSIONS FOR POLLING PLACE PERSONNEL ON THE NEEDS OF DISABLED VOTERS

RECOMMENDATION:

That the Chief Electoral Officer be directed to arrange, in consultation with disabled persons and their organizations, orientation sessions on the needs of disabled persons for Deputy Returning Officers and their staffs.

Little Cost and Time: Many of the problems that disabled voters encounter at polling places can be solved by educating the people who are responsible for these facilities. This includes the Deputy Returning Officers and their staffs. If these individuals become familiar with the needs of the disabled voter at the very outset of an election period, then many potential conflicts and problems of accessibility can be eliminated. Since these polling place personnel must go through an orientation session as a requirement for their jobs, this additional information regarding disabled voters will entail very little extra cost and time.

* * * * *

8

REFER QUESTIONS REGARDING ACCESSIBILITY FOR DISABLED VOTERS TO STANDING COMMITTEE

RECOMMENDATION:

That the question of accessibility to polling stations voting booths, and the offices of Returning Officers and Deputy Returning Officers be referred to the Standing Committee on Privileges and Elections.

Problems Uncovered: The office of the Chief Electoral Officer made a submission, and then sent representatives to appear the Committee at a public hearing. While the submission did not indicate that there were any problems of accessibility regarding disabled voters, the subsequent testimony at the hearing clearly revealed that such problems to exist.

Manitoba Example: In Manitoba, the Elections Act has been amended to help provide accessibility to disabled voters. In the first instance, the returning officer is instructed to "locate polling places in premises to which the voters have access from the street without going up or down stairs".

Temporary Change: The Manitoba Elections Act also states that in the case of a disabled person who cannot enter the existing polling place without difficulty, the returning officer should remove the ballot box, along with all ballots and documents in the polling place, and take it to a place in close proximity where it is accessible to the person, such as an automobile outside the polling station.

Standing Committee: The Special Committee cites this Manitoba experience as a possible model for federal legislation. In the meantime, it recommends that all questions related to accessibility should be referred to the Standing Committee on Privileges and Elections.

* * * * *

In Manitoba, the Elections Act has been amended to help provide accessibility to disabled voters.

9

AMEND ELECTIONS ACT TO REDUCE DISQUALIFICATIONS BECAUSE OF "MENTAL DISEASE"

RECOMMENDATION:

That the Federal Government amend the Canada Elections Act to reduce the number of people disqualified from voting by reason of "mental disease", by providing clear criteria for determining the specific cases where exclusion from the democratic process is absolutely justified.

Cannot Vote: At the present time, some Canadian citizens are denied their rights vote in Federal elections because of a prohibition under Section 14(4) of the Canada Elections Act, which states that "every person who is restrained of his liberty of movement or deprived of the management of his property by reason of mental disease" does not have the right to vote. Some of these individuals are residents of psychiatric institutions or "homes of special care" and there is a great deal of confusion, and difference of opinion, regarding their democratic rights.

No Distinctions Made: This confusion is a natural consequence of the general wording of the Act. What is "mental disease"? The Act does not elaborate. There are no distinctions made between different kinds of psychiatric facilities, and no distinctions made between the different situations and conditions of the persons who reside in them. For example, Section 14(4) does not distinguish between a person who is a resident on a voluntary basis from another person who entered the facility involuntarily. Nor does it make any provisions for those persons who are preparing to return to a normal life in the community.

Show Good Cause: The right to vote is basic to the democratic fabric of Canada. The onus should be placed on showing why someone should not be allowed to exercise the right. The present wording of Section 14(4) is not adequate. It is, therefore, important to review this section of the Canada Elections Act and amend the wording so that the number of disqualifications because of "mental disease" are reduced. Clear criteria should be established for determining cases where exclusion from the democratic process is deemed absolutely necessary.

Not Uniform: The office of Chief Electoral Officer has a policy to the effect that no one is deprived of the vote unless he or she is restrained under a court order. However, the law could be interpreted in other ways, and the policy itself has not been uniformly enforced across Canada.

* * * * *

10

DEVELOP APPROPRIATE LEGAL TERMS RELATED TO MENTAL DISABILITY

RECOMMENDATION:

That the Federal Government direct the Department of Justice to consult with medical authorities to develop appropriate legal terminology relating to mental disability for use in legislation. Offensive Terms: Federal statutes such as the Criminal Code, the Land Titles Act, and the National Defence Act — presently employ the terms "idiot", "imbecile", "lunatic" and "feeble-minded" to describe various types of mental disability. These are deemed by some people to be offensive, inaccurate and antiquated — and serve mainly to reinforce discriminatory attitudes and practices toward mentally disabled people in all areas of society. These terms should be replaced by currently used terminology which is related to modern psychiatric practice.

* * * * *

11

CHANGE THE CRIMINAL CODE PROVISIONS ON "INSANITY" AND "FITNESS TO STAND TRIAL"

RECOMMENDATION:

That the Federal Government, through the Federal Government, through the Department of Justice, and in consultation with provincial health authorities, reform the Criminal Code provisions relating to mentally disabled persons, in order to:

• Develop and implement a new procedure to replace the Lieutenant-Governor's Warrant, and provide special facilities and treatment of the mentally disabled who are sentenced by the courts;
• Define the rights before the law of mentally retarded and mentally ill persons;
• Establish fair and appropriate procedures for all stages of the criminal process when mentally disabled accused are involved; that is, arrest, bail, fitness to stand trial, the finding of criminal responsibility, and disposition.

Deep Trouble: A mentally disabled person who has the misfortune to be the accused within the criminal justice system of Canada is virtually denied the legal protection and the due process of law which applies to other Canadian citizens.

Indefinite Confinement: For example, a mentally retarded persons may be declared unfit to stand trial and be held indefinitely "at the pleasure of the Lieutenant-Governor" without ever being tried for the crime. By the same token, the present system of confinement under one of these "Lieutenant-Governor's Warrants" does not provide clearly for treatment of the disabled person. On top of these shortcomings, the practice of review boards dealing with the cases of confined persons varies from one province to another.

Law Reform Commission: In 1976, the Law Reform Commission of Canada studied these problems, and recommended that mentally disabled persons, in particular, be returned to the legal system. They should stand trial with lawyers and advocates to protect their interests. If found not guilty, they should be released. If found guilty, then the mental health of the individual would be taken into consideration when determining the penalty. Over the years, other proposals for reform have been made, sometimes conflicting with each other. The time ha now come to reach a consensus in this matter, and to take action as soon as possible.

* * * * *

A mentally retarded person may be declared unfit to stand trial and be held indefinitely.

12

REVIEW THE OPERATION OF LIEUTENANT-GOVERNOR'S WARRANTS:
THE INDEFINITE DETENTION OF MENTALLY DISABLED PERSONS

RECOMMENDATION:

That, pending the replacement of the present legal system of Lieutenant-Governor's Warrants, the Federal Government request the Minister of Justice to meet with provincial authorities in order to review the operation of the warrants, with particular reference to:

• The functioning of review boards, particularly where cases of mentally retarded persons are being considered;
• The individual cases of persons presently being held in indefinite detention under Lieutenant-Governor's Warrants.

834 Persons: As of April 1980, there were 834 persons in Canada being detained indefinitely in psychiatric facilities — or under strict supervision — because they have been deemed "criminally insane". This means that they are either "unfit to stand trial" or have been found to be legally "insane". For some, this detention has already extended over many years. All of these individuals are being detained under Lieutenant-Governor's Warrants — which means that the person will stay in the psychiatric facility for as long as the particular provincial government desires.

Only One Way Out: The only way out of the institution for these people is through the recommendation of a government-appointed review board of doctors and lawyers. At present, the composition and the influence of these boards does not favour the detained person, especially if the person is considered mentally retarded. The latter should be assessed by specialists in the field of mental retardation, in addition to psychiatrists and lawyers. This review board has the power only to make recommendations, not to order the release of an individual. It must state that he or she has recovered from the mental disability, and can be released. But even with this statement, the provincial government can reject the recommendation and refuse to rescind the Warrant.

No Obligations: Under the Lieutenant Governor's Warrants, the particular provincial government is under no obligation to provide any form of treatment to the detained person. This further lack of protection means that the person has no guarantee of being able to give evidence to the review board that he or she has recovered.

Immediate Explanation: Regarding the 834 individuals who are now being detained, the Committee recommends that an immediate examination be made of why a Warrant continues to be used in each person's case, instead of the "due process of law".

* * * * *

13

ENCOURAGE PROVINCES TO KEEP MENTAL HEALTH ACTS UP TO DATE

RECOMMENDATION:

That the Federal Government encourage the provinces to review their mental health acts at regular intervals with input from the public in order to reflect current thinking regarding rights of and treatment for mentally / emotionally disabled persons.

Limited Protection: The Federal Government is very limited in its ability to protect the rights of people who are being treated for emotional / mental disabilities. The treatment of these persons falls entirely under the regulations of provincial legislation, over which the Federal Government has no jurisdiction. Some provinces are more forward-thinking in their mental health legislation than others. For example: There are significant differences in the time period that a person can be involuntarily detained from one province to another.

Only Way: The only way that the Federal Government can promote uniform and fair treatment for Canadians with emotional / mental disabilities — especially those who are institutionalized — is by encouraging the provinces to review their legislation at regular intervals. The respective acts should constantly be up-dated to reflect current national thinking about the rights and treatment of individuals. The Committee recommends that Federal Government officials who consult with the provinces on matters of mental health give a high priority to this review process.

* * * * *

The only way that the Federal Government can promote uniform and fair treatment for Canadians with emotional / mental disabilities is by encouraging the provinces to review their legislation at regular intervals.

14

ENCOURAGE PROVINCES TO INCLUDE EDUCATION AS A BASIC HUMAN RIGHT

RECOMMENDATION:

That the Federal Government encourage all provinces to include in their human rights legislation the right to an education that ensures disabled children the opportunity to reach and exercise their full potential.

Serious Inequity: Throughout its hearings, the Committee received evidence that disabled children, especially those with learning disabilities, do not have equal opportunity to education. While provinces have total responsibility for matters of education, the Committee believes the Federal Government can exercise leadership in pointing out the scope and seriousness of an inequity that exists in many parts of Canada.

No Privilege: Canadians no longer see the education of children as a privilege to be reserved only for those who can afford it. It is universally agreed that education is a basic right to which all Canadians are entitled, including disabled children. In the United States, this basic right is specified and protected by the Rehabilitation Act and by the Education for All Handicapped Children Act. In Canada, the provinces of Quebec and Saskatchewan have right. Canadian citizens in every province deserve this same protection for their children.

Human Rights: The Committee, recognizing again that this is entirely a provincial responsibility, nevertheless, recommends that the Federal Government encourage all provinces to make the right to an education part of their human rights legislation.

* * * * *

Canadians no longer see the education of children as a privilege to be reserved only for those who can afford it. It is universally agreed that education is a basic right to which all Canadians are entitled, including disabled children.

15

IMPROVE ACCESS TO LEGAL SYSTEM FOR DISABLED PERSONS

RECOMMENDATION:

That the Federal Government, through the Department of Justice, in consultation with disabled consumer groups and provincial governments, develop plans and take effective steps to improve disabled persons' access to the legal system.

Judicial Barriers: The daily routines of legal systems throughout Canada tend to ignore the special needs of disabled persons. For example, lawyers' offices, legal aid offices, and courtroom facilities are frequently inaccessible to persons in wheelchairs. Persons with visual and hearing disabilities have difficulty obtaining legal information in an understandable form. There is a lack of written information in braille, in large print, and on cassette. Their are no translations of proceedings into sign language. Easy access to the legal system is a basic right of all Canadians. At present, there are over one million disabled Canadians who would encounter difficulty in using the facilities and services of the legal system. The obstacles they face must be removed.

Preliminary: The Department of Justice has undertaken a preliminary study to solve these problems. These efforts should be given a high priority by the Department to ensure quick progress, and should include direct consultation with disabled persons and their organizations.

* * * * *

16

MAKE HUMAN RIGHTS COMPLAINTS AND COURT ACTIONS ELIGIBLE FOR LEGAL AID

RECOMMENDATION:

That the existing federal-provincial cost-sharing agreements for legal aid be expanded to include legitimate proceedings related to the Canadian Heritage Rights Act, brought before federal tribunals and courts.

No Money: This extended eligibility for legal aid will help all low-income complainants, but especially those who are disabled. It is difficult, if not impossible, for many disabled persons to pursue justifiable actions under the Canadian Human Rights Act, because they have no money to pay for legal assistance.

Cost-Sharing Precedent: At present, legal aid is provided in appropriate criminal cases throughout Canada.

The Federal Government shares costs with the provinces because the cases come under the Criminal Code. The Canadian Human Rights Act, as a federal statute, the Act shouldn't be eligible for legal aid funding under this same cost-sharing agreement.

Regulatory Bodies Also: Complaints and court actions related to the Canadian Human Rights Act would also include cases before regulatory bodies such as the Canadian Radio-Television and Telecommunications Commission (CRTC), and the Canadian Transport Commission (CTC).

* * * * *

The daily routines of legal systems throughout Canada tend to ignore the special needs of disabled persons.

17

PROVIDE MINIMUM WAGE GUARANTEE FOR DISABLED PERSONS EMPLOYED UNDER FEDERAL JURISDICTION

RECOMMENDATION:

That the Federal Government phase in a system whereby disabled persons, employed in sheltered work settings or elsewhere, under federal jurisdiction, will be entitled to receive at least minimum wage under the Canada Labour Code.

That the provinces be encouraged to introduce similar measures, following the lead of Quebec.

That in all cases there be close coordination to ensure appropriate placement of persons either in sheltered work settings, or in adult activity centres (which are not subject to minimum wage requirements).

Same Protection: Under federal law — and in all provinces except Quebec — disabled persons in some circumstances can be paid less than the minimum wage. The Committee feels that this practice should be phased out in all work settings that are under federal jurisdiction. This applies especially to "sheltered work settings" where products and services are sold competitively on the open market. The possibility of paying lower wages can be an open invitation to exploitation or a cover for bad employment practices. It is discriminatory; disabled persons in such circumstances have the same right to protection under the Canada Labour Code as non-disabled persons.

Distinctions: Sheltered work settings must be distinguished from "adult activity centres", which provide activities and skill training for those unable to function in a work setting. In these centres, disabled persons are frequently paid an allowance, or a small incentive, for attendance.

Sensible Phase-in: It is very important the attainment of this legal right not be gained at the price of people losing their present jobs, or activities. A transition period will be required in which careful attention is paid to the skills of the people concerned, and how they can be best employed.

Note: See also Recommendation 37

* * * * *

The possibility of paying lower wages can be an open invitation to exploitation or a cover for bad employment practices.

18

MONITOR ADULT OCCUPATIONAL CENTRES

RECOMMENDATION:

That, as a condition of cost-sharing under the Canada Assistance Plan, the Federal Government require each province, where it has not already done so, to establish a review mechanism for Adult Occupational Activity Centres which provide daytime activities, not subject to a minimum wage requirement, for those individuals who cannot function in a sheltered work setting.

Protection: "Adult occupational activity centres" are designed to provide stimulation and occupational therapy for individuals who are incapable of gainful employment. There have been serious complaints in testimony presented to the Committee that some centres are not providing quality services to disabled persons. The Federal Government helps to fund these centres through the Canada Assistance Plan. All future funding should now be made contingent upon the provinces establishing mechanisms to monitor the quality of life in these centres.

Note: Persons who are dislocated by the implementation of minimum wage must be guaranteed the opportunity to participate in activity centres