This week marked the celebration of the 30^th anniversary of the Charter of Rights and Freedoms in Canada.  It was an especially momentous occasion for Canadians with disabilities. 

A significant turning point in Canada’s awareness of disability issues came in 1981, the International Year of Disabled Persons.  Canada appointed an all-party House of Commons Committee to identify the challenges related to disability and to propose recommendations for change. 

It was the first time in Canada that such an exhaustive inventory had been undertaken on disability.  The Committee produced the Obstacles report, which made recommendations on all major policy issues including human rights, income security, employment, technical aids and devices, transportation and communications. 

One of the most important aspects of 1981 was that it preceded the year in which Canada repatriated the Constitution.  The British North America Act of 1867 became the Constitution Act of 1982.  The Act was going to embed a Canadian Charter of Rights and Freedoms, which was being drafted.  Several Committee advisors saw the introduction of the Charter as a once-in-a-lifetime opportunity to protect and promote the rights of persons with disabilities. 

The Government of Canada was not keen to include disability protection in the Charter of Rights and Freedoms.  There was no precedent for such a Constitutional inclusion anywhere in the world.  The federal government was worried about being swamped by lawsuits and associated costs − ironically, a fear that demonstrates how much this legislative protection actually was required.

After extensive deliberations, Ottawa made an offer to the Committee.  The Charter of Rights and Freedoms would include prohibition of discrimination on the basis of physical disability.  Mental disability would not be incorporated in the Charter because the implications were unknown and potentially too great. 

Members of the House of Commons Committee faced a serious crise de conscience.  They knew that this was a unique opportunity to ensure inclusion of disability in the Charter.  How many times in the course of history does a country renew its Constitution?  But they also knew that excluding mental disability from the Charter of Rights and Freedoms would make the Committee guilty of the very discrimination that its members were fighting to overcome.  The acceptance of physical disability alone would have been a hollow victory at best.

The Committee decided to refuse the offer.  The Government was surprised by the response and agreed to back down.  Canada became the first country in the world to include in its Constitution the protection of the rights of persons with physical and mental disabilities.

Posted April 20, 2012