DRPI – CanadaMonitoring Policy and Law Theme

By: Miha Dinca, Roxanne Mykitiuk, Yvonne Peters, Michael Prince and Ken Singh

Monitoring Policy and Law – Team Members Roxanne Mykitiuk, theme leader, Osgoode Hall

Law School Yvonne Peters, theme leader, Disability rights

legal expert Michael Prince, University of Victoria Marcia Rioux, Project Director, York University Mihaela Dinca, Project Coordinator

Monitoring Policy and Law – Organizational Partners ARCH Disability Law Centre Canadian Human Rights Commission (CHRC) Centre Interdisciplinaire de Recherche en Réadaptation

et Intégration Sociale (CIRRIS) Office for Disability Issues, Government of Canada (ODI) Office des Personnes Handicapées de Québec (OPHQ) Raoul Wallenberg Institute of Human Rights and

Humanitarian Law (RWI)

Objectives

Analysis of legislation, policy and case law at federal and provincial levels (corresponding to the 4 monitoring sites for Monitoring Individual Experiences) to assess the human rights protections for Canadians with disabilities

Identify the changes required to existing legal and policy frameworks to improve the lives of people with disabilities in Canada

Research questions

How are the federal and provincial responsibilities for disability allocated?

What are the approaches to disability employed by policy makers and how these impact on the realization of disability rights ?

How have Canadian courts and statutory human rights bodies addressed disability issues?

Research flow

Research tool – Law and policy template

Data collection

Data analysis

Dissemination of findings

Law and policy assessment template Developed in the context of DRPI-International

and adapted to the Canadian context (ongoing process)

Grounded in the Human Rights Approach Designed to collect data and monitor trends in

legislation, case law and policy Organized into headings/questions (based on

international HR instruments)

Methodologyto implement the template

Scope: Guidelines/consistency of data collection process

Components:Policy databaseLegislation databaseCaselaw database

Methodology - components

Policy databaseStructure:

Distinction between ‘interpretive’ policy and ‘other’ policy

Content: Federal/provincial government publications;

committee reports Discourse addressed by respective doc

Methodology - components

Legislation databaseStructure:

Within each Question legislation organized by jurisdiction

Web links created to the corresponding legislation

Content: Interpretative policy that gives substance to

respective legislation Regulations

Methodology - components

Caselaw database Structure:

Within each question link to the legislative provision caselaw interprets

Content: Substantive detail on the case: facts/legal issues/major line of

argument Interpretive notes (to provide reader with line of logic used by

reserachers to get a certain conclusion) Interpretive policy that shed lights on the case law 2 category of cases:

Cases that stem from common law principles instead of legislation Non-disability related cases that bear significance to disability

issues

Methodology - components

Synthesis Documents Integrate main findings, identify gaps, and

policies that are consistent/inconsistent with the legislation , and pinpoint where the legislation is interpreted narrowly or construed broadly

Limitations

Research Process

Analysis of legislation, case law, policy and legal institutions

Key informant interviews Purpose and effect analysis –

reconciliation Create a framework interweaving analysis

and results

Sample Data Legislation

BC Human Rights Code, s.8 Policy

Interpretive Policy - The Duty to Accommodate after Meirorin and Grismer

Non-interpretive Policy- Disability and Social Policy in Canada, 2e (2006) by Mary Ann McColl, Lyn Jongbloed (eds)

Case-law C.U.P.W. v. Canada Post Corp., 2001 BCCA 256, 87

B.C.L.R. (3d) 341 MacBain v. Canada (Canadian Human Rights

Commission), (1985), 22 D.L.R. (4th) 119

Preliminary Findings

H1Q1 - Legislation – prohibits discrimination on the grounds of disability – but disability is not clearly defined

H1Q2 – Common law principle of parens patriae tempers individual autonomy

H1Q4 – broad and complex nature of disability

Preliminary Findings Contd

H1Q5 – Overlaps with H1Q3 (equal participation) – central to employment/education

H1Q6&Q7 – Designation v. Process – what constitutes a “barrier”?

H1Q8 – Both case law and legislation are equally apt at addressing indirect discrimination

Preliminary Findings Contd.

H1Q9 –– Exclusion to providing reasonable accommodation:BFOR’sGood Faith Exclusions

H1Q10 - Good faith requirement to provide reasonable accommodation

Next Steps

Finalize data collection & analysis Development of a database Scoring Method Conduct key informant interviews Integrate theme’s findings with the other

themes’