Consultation for the new Human Rights Commission

In November I was invited to take part in the consultations for the new Human Rights Commission, with Parliamentary Secretary Ravi Kahlon. Below is my written submission that framed our face-to-face discussion.

Michelle and Ravi Kahlon-0FD8-4987-A537-ABF54AEDAD94

Dear Parliamentary Secretary Kahlon

As a disabled woman and a long-time advocate for disability rights, I welcome the reinstatement of the BC Human Rights Commission, as an opportunity for the Government of BC to play a proactive role in improving the lives of disabled people, and to reverse the disturbing trend of the invisibility of disability rights.

I live in the Central Okanagan and advocate for the rights of disabled people. As someone who had a successful leadership career before my disablement, I recognize the privilege I had, and I see that this same privilege is not present in the lives of disabled people. In particular, there is a lack of value placed on the lived experience of disabled people. I feel that it is my duty to speak out, to advocate for those disabled people whose voices are silenced, and to demand substantive change for the 17% of BC citizens who are disabled.

I am an elected board member of Disability Alliance BC; a regional board member and government relations committee member of the MS Society of Canada, BC and Yukon division; and the founder of a fledging disability rights group, the Central Okanagan Disability Coalition (CODC). CODC aims to inform disabled people and their allies of the options available to them locally, provincially and nationally, to improve their lives, and educate others about the lived experience of disabled people.

Historical Awareness of Disability Rights
While minority rights have seen advances, beginning with the Civil Rights era in the US, historically, those advocating for disability rights have not had the same success. Indeed, I would suggest that while the rights of women and people of ethnic minorities have increasing public visibility, there is not the same level of awareness of disability rights. In 1995 Hillary Clinton declared at the UN Fourth World Congress on Women, in Beijing, that “Human Rights are women’s rights, and women’s rights are Human Rights.”1 That speech happened 13 years before the UN Convention on the Rights of People with Disabilities was even ratified, and no-one has stood up in front of any such august body and declared “Human Rights are Disability rights”, and vice versa.

It is not through lack of trying on behalf of the disability community, that this gap in awareness has persisted. Indeed, Canada came very close to excluding mental and physical disability from the non-discrimination clause, section 15(1), of the Canadian Charter of Rights and Freedoms. It is only through the persistence of the Council for Canadians with Disabilities, (under its first name, the Coalition of Provincial Organizations of the Handicapped (COPOH)) that these aspects were included.

Fifteen years later, in 1997, the case of Eldridge vs British Columbia came before the Supreme Court of Canada; it concerned the refusal of the BC government to provide sign language interpretation to deaf patients. In the summation, the court made the following strong statement about the historical disadvantages faced by disabled people. Note that, twenty years later, in 2017, the same issues of marginalization and exclusion persist:

It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization. Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social interaction and advancement, subjected to invidious stereotyping and relegated to institutions…
This historical disadvantage has to a great extent been shaped and perpetuated by the notion that disability is an abnormality or flaw…[People with disabilities]… have been subjected to paternalistic attitudes of pity and charity, and their entrance into the social mainstream has been conditional upon their emulation of able-bodied norms…2

Five years after this Supreme Court judgment against this province, the BC government dissolved the BC Human Rights Commission, making British Columbia the only province in Canada without a Human Rights Commission. This action removed the ability of the government to be proactive and to educate the public on human rights, leaving only limited and punitive measures through the BC Human Rights Tribunal. Figures from the Annual Reports3 of the Tribunal show that disability accounts for around 45% of the grounds for complaint to the tribunal each year, and in 2016-17 “[d]isability represented 55% of the grounds of discrimination at issue in final decisions”4. This means that disability-related complaints are more likely to make it through the arduous process to a final Tribunal decision than all other grounds for discrimination. Many issues do not even make it this far, as the process is seen as unapproachable and unaffordable by most, with lawyers of fees of $15,000 a day quoted7 for hearings which could last for 3 to 5 days. All this, and even if the decision is in favour of the disabled complainant, the outcome does not result in substantive change for disabled people in BC. Being proactive is costs less and more effective.
The BC Human Rights Commission is needed now more than ever for the disabled citizens of this province. In Spring 2018, the federal government aims to table legislation specifically targetting disabled Canadians, aimed at tackling issues of accessibility and inclusion. Not only does similar legislation not exist in BC, lagging behind 3 other provinces, but there are no plans to put it in place. This will leave disabled British Columbians dealing with an inconsistent patchwork of legislation.

What happens when the government fails to act as a role model?
I believe that the role of government is to set the bar high and, from this, expectations rise everywhere. Dissolving the Human Rights Commission in 2002 removed the bar on expectations for human rights in BC, allowing various levels of governance to renege on their responsibilities to minority groups. An example from my community: The City of Kelowna had an accessibility committee that was able to provide feedback to Council on issues relating to disabled people. Five years ago, it too was dissolved. Now, there is no official way for disabled people in Kelowna to give feedback on the issues they face in the community and, critically, no group for the city to approach that has expertise in the lived experience of disabled people. It leads to a scattershot approach to disability issues, such that every department in City Hall deals with disability issues differently, with varying level of effectiveness.

Recently, the City of Kelowna launched an initiative called Community for All Ages, to capitalize on grants available from the Union of Municipalities of BC, with a focus on issues relating to seniors, children and disabled people. To do this, a steering committee of key stakeholders was formed. This committee had no disabled people as members, only people who worked with disabled people. One of their first decisions was to decide not to use the term “disability” or “disabled”, but instead, to refer to disabled people as “people with diverse abilities”; a divisive, patronising euphemism replacing the phrase accepted provincially, nationally, and internationally – persons with disabilities. When I challenged both this decision and the lack of disabled people on the committee, I pointed out that when the City wants to ask about growing apples, it asks people who grow apples. When it wants to ask about disability, it asks non-disabled people to speak on behalf of disabled people. It is extremely important that the BC Human Rights Commission both models and promotes inclusive design, by including people with disabilities as full members of the commission, thereby demonstrating the value of the lived experience of disabled people.

Without a proactive body to educate the public, it becomes difficult to create substantive change, as each instance of discrimination is viewed as an individual case, which does not help other disabled people facing similar discrimination. I will share one very personal (!) example; just one of many examples faced by myself and disabled people every day. Once a year I have to have a renal ultrasound. This requires you to drink a lot of water an hour before the scan, have the scan of the full bladder, go to a washroom to empty it, and have a scan of the empty bladder. I went to my local ultrasound facility and when it came time to go to the washroom, I found that the only one of sufficient size (displaying the blue accessibility logo) did not allow me to shut the door with my wheelchair inside the room, as the door had been hinged to swing into the room and not outwards, as indicated in the BC government building code Building Access Handbook5. I was forced to transfer onto the toilet with the door open, in full view of the reception desk and the waiting room, and for my husband to take the chair into the hallway and bring it back when I called him. I simply cannot imagine this kind of inappropriate exposure happening to non-disabled people, particularly in a medical facility where using the washroom is part of the procedure.

I made a complaint to the medical practice, and a year later, on returning for the same scan, I found that the only difference was the blue accessibility badge had been removed from the washroom door. When I questioned this, I was told that the medical practice had been advised by their general contractor that having an accessible washroom was not a requirement for them. Further, I was told I should use the public washroom in the main concourse of the building if I did not want to transfer in full view of everyone. Again, imagine non-disabled people being told they have to go elsewhere, when there is a washroom right in the medical facility. I responded with a letter quoting the relevant section of BC Building Access Handbook including my intention to take my complaint forward to the BC Human Rights Tribunal. That threat was hollow, though, because, like most disabled people, I do not have the resources to carry out such a complaint individually. Apparently, the threat was sufficient as the hinges were swapped to the outside of the door and the washroom is now wheelchair accessible. However, the steps I had to take should not be necessary to achieve accessibility. It altered one door in one facility. It does not set precedent, it does not educate the public and it does not make substantive change for the disabled citizens of BC. A BC Human Rights Commission has the potential to make these changes possible.

Disabled people in BC are discriminated against in many more major ways beyond this single instance of a lack of accessibility. They struggle to find employment, as employers find ways to cover up or disguise discrimination, leading to unemployment or underemployment for disabled people. They struggle to find suitable housing at an affordable cost, and are discriminated against for being disability welfare recipients, which, again, in a competitive rental market, is difficult to prove. Applications for programs like BC Disability Assistance (PWD) and CPP-D are complex and rely on medical evaluation processes that are difficult to navigate, especially for those with episodic and invisible illnesses. British Columbians with disabilities need a robust body that is prepared to take on these major issues of discrimination and disadvantage, and lead the province in a proactive manner to make substantive change for all disabled people.

The time to make changes is now
It is time to raise the profile of disability rights, and declare that human rights are disability rights and disability rights are human rights. There is much work to be done. Read the reports on the launch of this consultation process from the Globe and Mail 6 , CBC7, and the Vancouver Sun8 and pay special attention to the lack of any mention of disability rights in any of these media accounts. Various minority groups are identified as victims of discrimination. Some are mentioned by the government representatives involved and others by those interviewed for the articles. Nowhere is ableism mentioned and there are no quotes from members of the disability community, leading readers to believe that none were interviewed. Hence, disabled people, the minority group that represents the bulk of complaints to the current tribunal process and has been historically marginalized, did not make it into the media coverage of the launch of this consultation. The message continues to be that disabled people are invisible and their issues are not important enough to be included in the commission.

What do we need the Human Rights Commission to do?
While there is a myriad of actions that the Human Rights Commission can do, I believe that action in the following areas would serve as the building blocks of the new BC Human Rights Commission:

– Place a high value on lived experience in the appointments made to the BC Human Rights Commission
Disabled people in BC need a Disability Advocate with lived experience to champion their rights, and to lead this work on the basis of human centred design. The disability rights movement phrase “nothing about us, without us” has led the disability movement for decades, and disabled people cannot be given a back seat – or no seat at all – in the latest version of the BC Human Rights Commission.

– Educate the public well
Local government, businesses, organizations and the public need clear materials9 that can guide them in their dealings with disabled people. These groups need accurate information to read, accurate depictions of disabled people to view, workshops to take part in, all based on solid contemporary approaches. Groups and individuals need to know that they can contact the new BC Human Rights Commission to receive robust, knowledgeable answers to their questions in a timely manner.

– Use an intersectional approach
Disabled people do not exist in isolation of their multiple identities, including race, gender identification and culture, for example. Hence disabled women, in particular, face discrimination most keenly, through historical abuses, including the effects of poverty, violence and insecure employment. Within the BC Human Rights Commission, no minority group must operate in isolation, as it is at the intersection of these groups that we find the most vulnerable people, those most in need of support and advocacy.

As a disabled woman and an advocate, regionally and provincially, I see the discrimination faced by disabled people on a daily basis. The new BC Human Rights Commission offers great promise to begin to redress the historical disadvantages faced by disabled people and will only meet this promise with the direct involvement of disabled people. Thank you for considering my submission and I would be very pleased to continue to be involved in this important work as the project continues.

Michelle Hewitt
Disability Advocate


2 Eldridge v. British Columbia (A.G.), [1995], B.C.J. No. 1168.
9 An example from Ontario –