Title: Making Disability Rights a Reality - Honouring the Legal Rights of the Minority of Everyone

Date: Monday, February 23, 2026

Description: Mr. Lepofsky visits Queen’s University as a Visiting Professor of Disability Rights bringing extensive knowledge that spans a wide range of legal areas including Administrative Law, Constitutional Law, Tort Law, Contracts, Property Law, Labour Law, Employment Law, Human Rights Law, and criminal appeals. He holds an LLB from Osgoode Hall Law School, an LL.M from Harvard Law School, and several honorary doctorates. He chairs the Accessibility for Ontarians with Disabilities Act Alliance and has held key leadership roles advocating for disability rights across multiple sectors.

Speakers:

• David Lepofsky - Visiting Professor of Disability Rights

Podcast: 

Transcript:

00:00:00
Welcome.
00:00:01
I'm Kevin Banks.
00:00:02
I'm an associate dean here at Queen's Law.
00:00:04
I'm here on behalf of Colleen Flood, our dean who sends her regrets.
00:00:10
She is unavoidably in Ottawa today.
00:00:14
Let me begin by offering a land acknowledgement.
00:00:18
As you know, Queen's University is situated on the traditional lands of the Haudenosaunee and Anishinaabe people.
00:00:25
We recognize their enduring presence, their knowledge and stewardship, and we're grateful for the opportunity to gather, teach, and learn on these lands.
00:00:36
As a law school, we also recognize that reconciliation is an ongoing responsibility, one that calls us to confront barriers, expand inclusion, and work towards justice.
00:00:49
And in that spirit, it's a real pleasure to introduce David Lepofsky.
00:00:55
David is a graduate of the Osgoode Hall Law School, where he earned his LLB with honors in 1979, and he went on to complete his LLM at Harvard Law School in 1982.
00:01:07
He has since received multiple honorary doctorates, including one from Queen's University, which is an honor.
00:01:16
These are honors that reflect the extraordinary and lasting impact of his work on Canadian law and Canadian life.
00:01:24
David's name is inseparable from one of the most consequential developments in Canadian constitutional law.
00:01:31
The explicit inclusion of disability is a protected ground under Section 15 of the Canadian Charter of Rights and Freedoms.
00:01:41
At a time when that outcome was far from assured, David was at the heart of a determined, strategic, and ultimately successful advocacy effort
00:01:52
to ensure that equality under the Charter truly meant equality for persons with disabilities.
00:01:59
That achievement didn't simply amend the constitutional text, it reshaped Canadian equality jurisprudence and profoundly changed the legal landscape for millions of people.
00:02:11
For those who want to understand how this breakthrough actually happened, the strategy, the setbacks, and the persistence, you can read David's most recent book,
00:02:21
released just last year called Swimming Up Niagara Falls, The Battle to Get Disability Rights Added to the Canadian Charter of Rights and Freedoms.
00:02:30
It's A compelling and deeply human account.
00:02:34
And fittingly, it's available in multiple accessible formats, including audio, Braille, EPUB, print, and accessible digital text.
00:02:44
Alongside his advocacy, David has had a distinguished legal career, serving for more than three decades as Crown Counsel with Ontario's Ministry of the Attorney General and appearing in dozens of cases before the Supreme Court of Canada.
00:02:59
He's also made an enormous scholarly contribution.
00:03:02
He's the author of two books and more than 30 scholarly articles and book chapters across constitutional law, criminal law, administrative law, human rights, and disability rights.
00:03:13
His work has been cited with approval by the Supreme Court of Canada and by courts across the country.
00:03:20
Many will know David through his long-standing relationship with the University of Toronto's Faculty of Law, where he taught and advanced constitutional law for decades.
00:03:30
We're especially grateful at Queen's Law that over the past year, David has been a visiting professor here.
00:03:37
During that time, he's taught in a number of
00:03:40
courses.
00:03:41
He's generally met, generously rather, met with students and faculty and contributed in countless ways to our intellectual life here at Winn's Law.
00:03:52
By the way, tomorrow for students with disabilities, there's an opportunity to meet with David at lunch in the faculty lounge.
00:04:00
So feel free to join him.
00:04:02
I'm sure he would be delighted to speak with you.
00:04:07
If today's talk leaves you wanting more, which it almost certainly will, you can follow his aptly named Lepodsky Cast, where his commitment to accessibility, clarity, and principled advocacy continues.
00:04:23
David, we're delighted to welcome you and grateful for this time of us.
00:04:28
Thank you very much.
00:04:37
It's great to be talking to get a chance to speak with you.
00:04:41
Let me just do a couple of plugs right up top, because the first thing you're going to learn about me is that I'm shameless.
00:04:47
It's part of being a disability advocate.
00:04:53
First, the lunch tomorrow, for any of you who have any kind of disability whatsoever, visible, not visible, whatever, you will be contemplating questions like,
00:05:08
What am I going to face in the workplace?
00:05:10
How do I deal with barriers in the workplace?
00:05:13
How do I deal with accommodation needs?
00:05:15
Do I have any?
00:05:18
When do I disclose?
00:05:19
Should I?
00:05:20
Do I have to?
00:05:21
And all that.
00:05:22
I can't give you legal advice, and I won't.
00:05:24
But through similar roles at two other law schools, I've offered this kind of opportunity to sit down over lunch.
00:05:34
informally with the doors closed and no university staff present and answer your questions.
00:05:42
And it's been a really blunt and I hope informative process, blunt in the questions I'm asked, informative, I hope, in the answers I give.
00:06:01
And so I encourage you to come.
00:06:05
And I mean disabilities ranging from people like me who are totally blind to people who have anxiety disorders and are people wondering if they've got the stamina for full-time versus part-time work.
00:06:17
The whole spectrum.
00:06:20
And what I do is I don't intrude on anyone's privacy.
00:06:24
I don't need to know anybody's name.
00:06:25
And I'm not there to give legal advice.
00:06:28
I'm there to have a conversation.
00:06:30
And as someone who went through
00:06:32
three and a half to 33 years practicing law with, in my case, a vision disability, I can at least share what I've learned through my experience and also talk about who people can connect with to get information, support, encouragement, and so on.
00:06:52
So feel free.
00:06:53
Second, do you have a smartphone?
00:06:56
Of course you all do.
00:06:58
Take it out.
00:06:59
please feel free to sign up for my podcast.
00:07:04
It's aimed at teaching people how to do social justice advocacy by journeying to the front lines of disability advocacy.
00:07:14
And it has the subtle name, Disability Rights and Wrongs, the David Le Podcast.
00:07:22
So all you gotta do is go to your...
00:07:25
podcast supplier, whether it's Apple Music or Spotify or whatever, and just search on David, space, LE podcast.
00:07:37
If you just search on Le Podcast, you're going to get a bunch of French podcasts.
00:07:41
But if you search on David Le Podcast, you'll find mine.
00:07:45
We talk about things from last week's episode,
00:07:50
How do you tackle the barriers that face people with disabilities who go to see a doctor?
00:07:55
Well, we asked a doctor who has disabilities.
00:08:00
How do you tackle the barriers that people with disabilities face in air travel?
00:08:04
We asked the person who was all over the news when Air Canada destroyed her wheelchair.
00:08:10
How do you get an appointment with a politician who's way too busy, and how do you get their attention when they've got a million other things on their plate?
00:08:20
I got two episodes out of an interview I did with a politician who I actually had the privilege of lobbying named Kathleen Wynn.
00:08:29
And her answers are really both informative and candid.
00:08:38
So check out the podcast.
00:08:39
My aim is for you, if you're interested in any kind of social justice advocacy, to get practical action tips
00:08:49
from the experiences we've had on the front lines, both positive and negative experiences.
00:08:57
Oh, those were my two shameless plugs.
00:08:59
I got a third.
00:09:01
And then I'm going to actually talk about what you came here for me to talk, you came here for pizza, what you came here to talk about.
00:09:08
If you are interested in learning more or getting involved or just getting an idea of how this kind of advocacy is done,
00:09:17
by those of us who've been doing it for some time.
00:09:21
I chair a coalition called the Accessibility for Ontarians with Disabilities Act Alliance, or AODA Alliance.
00:09:30
We're a virtual coalition, so I guess I'm a virtual chair.
00:09:35
We have an e-mail update list.
00:09:37
I write the updates.
00:09:38
If you'd like to get the updates, I'm going to have the most powerful tool
00:09:44
in the Community Organizing and Advocacy Toolkit, the pad of paper passed around right now, just print your e-mail address.
00:09:55
We're going to pass around a pad and a pen.
00:09:58
Kevin, if you can do that.
00:10:00
And just print your e-mail address and we'll sign you up.
00:10:05
And if you're watching this on video since it's being recorded, just go to www.aodaalliance.org,
00:10:14
There's a sign-up link right near the top of the page.
00:10:17
Type in your e-mail address, and away we go.
00:10:22
So what's the problem?
00:10:25
What drives all of this advocacy?
00:10:28
Well, the world is organized and operated, and has been since time immemorial, on a fundamentally pervasive, omnipresent,
00:10:42
and absurd premise.
00:10:45
Okay, my favorite author's Franz Kafka, you can tell why.
00:10:50
What is that premise?
00:10:51
It's overwhelmingly designed and operated as if it was mainly, if not exclusively, for people with no disability.
00:11:02
No physical disability, no sensory disability, like those of us who are blind or people with hearing loss.
00:11:09
No intellectual disability, no learning disability, no mental health condition or psychosocial disability, no neurodiverse condition.
00:11:25
None of those.
00:11:27
Look at the public transit we ride.
00:11:30
Look at the buildings we go into.
00:11:34
Look at the schools where we go.
00:11:38
and the universities.
00:11:40
Look at the technology we use.
00:11:43
Look at the stores where we shop and the goods that are sold there.
00:11:48
Look at the workplaces where we go for jobs.
00:11:53
Look at the laws that we live under and the courts that administer them.
00:11:57
Overwhelmingly, this premise pervades.
00:12:04
Now, is it
00:12:06
Universal?
00:12:06
No, there are some exceptions.
00:12:08
There are some provisions for us, but they tend to be the exception, not the rule.
00:12:17
Now, why is it absurd?
00:12:21
Well, I'm going to do a survey.
00:12:23
We're in an institution of higher learning here, so let's do a survey.
00:12:27
But we're in a law school.
00:12:28
It's going to be unscientific and therefore fully admissible under the laws of evidence.
00:12:33
You'll learn about that in second year.
00:12:35
Okay, I want to do a survey.
00:12:37
I want to know if this subject touches you.
00:12:38
Could you raise your hands, please?
00:12:41
If you have no disability now and you are certain you'll never get one for the rest of your life, raise your hand, please.
00:12:50
I don't see any hands.
00:12:53
Like I literally don't see any hands.
00:12:57
We are the weirdest minority of all.
00:13:01
Namely, everybody either has a disability now, or someone near and dear to them who has a disability, or eventually is bound to get a disability.
00:13:12
The most common cause of disability is aging.
00:13:15
And we're all getting older.
00:13:19
So we are the minority of everyone.
00:13:25
So designing and operating a world predominantly on a premise that hurts the minority of everyone is, put mildly, ridiculous.
00:13:37
Now, is this the result of a conspiracy?
00:13:40
Has somebody got it in for us?
00:13:42
Did people get together and design the world with it like this way, saying, Let's do this?
00:13:48
This is what we want?
00:13:50
Of course not.
00:13:52
Of course not.
00:13:53
Does that make a difference?
00:13:55
No.
00:13:56
Why not?
00:13:58
Because had there been a conspiracy against us, the world would not look much different than it does right now.
00:14:09
The results are what matter, which is core to equality jurisprudence, as you'll find.
00:14:16
Now, what do you do about it?
00:14:19
What do you do about all these disability barriers that we face?
00:14:25
Well, one solution that some of us, a lot of us believed in about 50 years ago was raise awareness.
00:14:35
Biggest problem against us, biggest problem we faced wasn't our disability, it's the attitudes of others.
00:14:40
If we just educate others, problem solved.
00:14:43
Problem?
00:14:45
Problem wasn't solved.
00:14:48
Doesn't work.
00:14:49
It changes some attitudes, but
00:14:52
It doesn't change practices enough.
00:14:56
Therefore, it became evident in the states in the early 70s, Canada, late 70s, early 80s, we need the law.
00:15:07
And an opportunity came along 46 years ago when then Prime Minister Pierre Trudeau decided that Canada needed a constitution.
00:15:19
That opened the opportunity for us to decide or to try to secure a provision of the Charter of Rights that would guarantee equality to people with disabilities.
00:15:32
Let me talk to you about that right.
00:15:34
Let me talk to you about how it came about, where it came from, what it means, what it's meant since it was passed, and what we're doing about it now.
00:15:49
Now, the first thing you need to know about this right is that it bears a unique status in our charter, equality for people with disabilities, and it bears a unique status for two reasons, each powerful on its own.
00:16:07
The first is that it is the only right that was added to the Charter of Rights
00:16:16
during a year and a half public debates over the Charter of Rights from the day Pierre Trudeau introduced it into Parliament in October of 1980 till the day the Queen signed the package into law in April of 1982.
00:16:38
There was much debate.
00:16:39
There were some warning changes.
00:16:43
But there was only one right that was not there in the original draft, but was added over those debates.
00:16:53
And that was equality for people with disabilities.
00:16:56
By the way, it would not surprise me if most people, most people with disabilities, most people who teach constitutional law across the country don't know what I just told you.
00:17:08
I'm not faulting anyone.
00:17:09
I'm just saying, this is a little known fact, but it's really powerful.
00:17:15
This was a right which parliamentarians decided needed to be added for the charter to be what it needed to be.
00:17:26
We should get a lot of a pretty powerful message about its importance from that.
00:17:33
Second, the rest of the Charter of Rights did not come from
00:17:40
the public rising up and saying, we want this or that right included.
00:17:44
It came from the hallowed halls of the Federal Department of Justice and political advisors and so on.
00:17:57
Drawing on traditions of bills of rights around the world.
00:18:04
But what's very different
00:18:06
is that equality for people with disabilities, that didn't come from them.
00:18:09
In fact, the Department of Justice, from what we've been able to ascertain, didn't want equality for people with disabilities in there.
00:18:17
Where did it come from?
00:18:19
It came from us, from the disability community, which is extraordinary, if you think about it, in contrast to all those other rights.
00:18:34
And in fact, if you look at the history of legislation protecting us that came since then, the Accessibility for Ontarians with Disabilities Act, which I had the privilege of leading the decade-long campaign for, the counterpart Accessible Canada Act, British Columbians with Disabilities Act, and so on, Manitoba, Accessible Manitoba Act, these came not from political platforms saying, hey, why don't we do this?
00:19:03
but people with disabilities demanding that it be done.
00:19:09
You don't find a lot of laws like that.
00:19:10
In law school, if you look at all the legislation you're going to trip over in your case law that you're reading and the research you do, overwhelmingly, that legislation was not the result of a grassroots movement.
00:19:27
It was a result of bureaucrats or politicians or whatever putting something on the political agenda, passing it, the public either not knowing about it or yawning very audibly.
00:19:37
I mean, it's really hard to get excited over the Oleo-Margerine Act or the whatever.
00:19:42
Okay, I don't know if it's still on the books.
00:19:44
I once got to defend constitutionality of a part of the Oleo-Margerine Act.
00:19:48
What A privilege.
00:19:51
Which part of it?
00:19:51
The part that at the time required that your margarine not be colored like butter, like I care.
00:20:03
Anyway, I digress.
00:20:06
So where did this right come from?
00:20:10
Well, let me, that's what my memoir, Swimming Up Niagara Falls, is about.
00:20:14
It's in the library if you want a hard copy to read.
00:20:18
Here, it's available online.
00:20:23
If you want to just search on Swimming Up Niagara Falls, you can download it as a print book, an ePub, audiobook, all free.
00:20:31
And I talk about the campaign to win it, and I also talk about what I learned about disability advocacy doing it.
00:20:41
Because I didn't, as you'll find out quickly as you read it,
00:20:45
I didn't have a clue what I was doing.
00:20:47
I was one of many people who were advocating, and I think most of us didn't have a clue what we were doing.
00:20:52
But I tell the story.
00:20:53
Anyway, so what happened is Trudeau proposes this package.
00:20:58
He had been trying for a decade to get the provincial governments to agree that we should patriot our constitution from England and add a charter of rights.
00:21:08
When he reached the point in the summer of 1980 that he couldn't get agreement, he announced in October of 1980
00:21:15
that the federal parliament was going to unilaterally call on the British parliament to amend our constitution to include a charter of rights and to patriate it.
00:21:27
Eight of the 10 Canadian provinces did not agree.
00:21:30
Ontario, New Brunswick did agree.
00:21:34
And Prime Minister Trudeau decided he wanted to get this thing through parliament really quickly.
00:21:42
So they rushed it through.
00:21:43
They started rushing it through, but they also started holding public hearings in Ottawa, parliamentary hearings.
00:21:51
And they did so for the very first time in Canada while televising them.
00:21:57
Television cameras had only come to parliament in 1977.
00:22:01
This was three years later.
00:22:03
And for the first time, you could turn on TVs and watch, for those of us who had nothing better to do,
00:22:12
committee, the joint committee of the Senate and the House of Commons holding these hearings.
00:22:17
And various groups were coming forward, raising their various issues with the text of it.
00:22:23
As the media predominantly did not cover debates over the text of it, they predominantly debated and covered the debate between the provinces who didn't want it and the prime minister who did.
00:22:37
In fact, much of the debate in Canada
00:22:41
was between federal and provincial politicians and a few law professors, and the public was, for the most part, bystanders, watching on the news as they saw interviews with the yes premiers and the no premiers and the federal politicians and so on.
00:23:01
I was, I stumbled into this issue.
00:23:06
How did I get involved?
00:23:08
Well, to summarize a book in just a
00:23:10
few minutes.
00:23:13
I was then doing the bar admissions course, which back then came after you articled.
00:23:19
It was six months long and incredibly boring.
00:23:23
Incredibly boring.
00:23:24
And I was involved at the time with a group of disability organizations that were actually trying to get disability protection into our provincial anti-discrimination law, the Ontario Human Rights Code.
00:23:40
And none of us were working on the Charter of Rights, but I heard about this Charter of Rights thing, and at some point, I asked somebody, is disability, is there an equality clause?
00:23:50
Yeah, is disability in there?
00:23:51
No.
00:23:51
So I took a look at it, and the way it was originally worded, it not only didn't mention disability, it precluded disability.
00:24:01
The original wording went like this.
00:24:05
Everyone is equal before and under the law,
00:24:07
and has the right to the equal protection and equal benefit of the law without discrimination based on race, national or ethnic origin, color, religion, age, or sex.
00:24:19
It banned certain grounds of discrimination, but if you weren't in the list, you were out.
00:24:27
I decided, personally, that this sucks.
00:24:32
Now, if I was getting involved in organizing to fight this battle now, what would I do?
00:24:37
I'd be on social media.
00:24:39
I would be tweeting about it.
00:24:41
I would find like-minded people that way.
00:24:44
I'd arrange a Zoom meeting.
00:24:45
We'd set up a new coalition.
00:24:47
We'd set up a website, a Facebook page.
00:24:51
Yeah, I'm that old.
00:24:52
And use whatever social media we could get, build a momentum, and then start doing news releases.
00:25:01
and organizing.
00:25:03
Back in 1980, we didn't have any of that.
00:25:06
We didn't have social media.
00:25:08
We didn't have Zoom.
00:25:09
We didn't have the internet.
00:25:11
We did not have personal computers.
00:25:16
If you wanted to compose a document, you did it on something you've seen on TV called a typewriter.
00:25:22
And if you wanted to address the same letter to multiple people, like one separately to each politician, it had to be retyped.
00:25:31
300, 400 times, once addressed to each, and then put in the snail mail where it would show up days later.
00:25:38
You wanted to issue a news release.
00:25:40
You had to put it in the snail mail.
00:25:42
You didn't issue a news release now trying to get in the news cycle today.
00:25:46
You were hopeful that they would receive it in a couple of days, and then maybe it would get coverage within the week, if at all.
00:25:56
It was, we were literally
00:25:59
using what you would consider prehistoric technology.
00:26:05
And by the way, if you wanted to meet with people, you had to meet, you had to all be in the same city and all get together under the same roof.
00:26:13
Well, good luck.
00:26:14
We're organizing across the country if you're going to do that.
00:26:18
It wasn't even an option.
00:26:20
The idea of doing what we do now as a matter of routine would have seemed like science fiction.
00:26:28
like 100 years into the future.
00:26:32
And so what was I going to do?
00:26:36
The first thing I figured out I needed was a platform.
00:26:40
If I issue a news release that said, blind law student David Lepofsky thinks the Charter of Rights should...
00:26:46
Who cares?
00:26:48
Like seriously, who cares?
00:26:53
But what I needed was a platform to speak from.
00:26:56
And the most obvious to me was our National Blindness Rehabilitation Service nonprofit, the Canadian National Institute for the Blind, CNIB.
00:27:07
I was on their provincial board.
00:27:09
I was representing them as a law student in a provincial lobby to get human rights code protections for us.
00:27:18
So I approached them to ask if I could speak for them on the Charter of Rights.
00:27:22
Nobody there even knew this was an issue.
00:27:27
And when I raised it, I can't say that people were storming to get me to please agree to help us with it.
00:27:36
was more like, oh, you want to do that?
00:27:39
Well, I can't do any harm.
00:27:41
Okay, sure.
00:27:42
That kind of thing?
00:27:43
Like, why not?
00:27:45
If you want to do it, go do it.
00:27:47
I didn't want to do it.
00:27:48
I don't think anybody else would have been doing it.
00:27:51
And this is important to understand.
00:27:53
When I approached them to do this,
00:27:56
Here I'm talking to you about a disability rights topic.
00:28:00
When I went to Osgood between 76 and 79, we didn't have courses on disability rights.
00:28:08
We didn't have classes on equality.
00:28:10
We didn't read the Human Rights Code.
00:28:13
It was a topic that never came up at all.
00:28:17
And the word
00:28:17
disability would not have even been used in the same sentence as the word rights.
00:28:23
Like it wasn't a thing.
00:28:24
It wasn't a thing at law school.
00:28:26
It wasn't a thing in my own mind either.
00:28:30
So this was all taking on stuff with no idea what I was doing and representing an organization that didn't have any expertise to offer me.
00:28:44
Compressing a much longer story, three different national disability organizations ended up getting slots to speak before the parliamentary committee.
00:28:57
I was representing the CNIB to do the third one.
00:29:01
The video of it is up on YouTube.
00:29:03
The only thing worth watching it that my wife commented on was that I had hair back then.
00:29:11
That's a really good thing she could say about it.
00:29:13
I myself, I cringe every time I watch it because we use terminologies like terminology like handicap that we never use now and so on.
00:29:23
But and my voice sounds higher.
00:29:25
But anyway, it's I did it with literally a day and a half notice.
00:29:34
And I did it without even knowing what the two other organizations had to say.
00:29:41
If you want to learn more about the story beyond what's going to end the memoir, my next two episodes of the podcast, one dropping 2 weeks from Friday and one 3 weeks after that, I'm actually interviewing one of the people involved in one of the other presentations, who also was a newbie to all of this.
00:30:04
We didn't know each other back then at all, and we kind of go through the history between the two of us.
00:30:10
comparing our experiences at each step of the battle.
00:30:14
We ended up winning, but we ended up winning at a time when we had no idea whether we could up until the day it passed.
00:30:23
Circumstances just conspired together in a way to make it all happen.
00:30:29
You might want to ask me, so what made them, what won it for you guys?
00:30:35
I have a whole chapter in the memoir, because the answer is, I don't know.
00:30:41
I kind of surmised, I did my best to try to extract from the circumstances, but it's lost in the mists of time.
00:30:49
We just don't really know.
00:30:52
And I try to do my best to assess it.
00:30:54
So let me move, let me just offer you the couple of conclusions from that, and then I want to move to what it means.
00:31:03
The conclusions I want to offer you
00:31:05
that you can take forward from this stage early in your law career are these.
00:31:10
Number one, as a law student, when you see lawyers who go to court or do other kind of public advocacy and you feel kind of daunted because you want to aspire to be one of them, but you don't feel you got that skill yet, you feel you got years, decades to get there, sometimes the opportunity to contribute comes very early on when
00:31:34
In my case, I didn't have a clue what I was doing.
00:31:38
That must never stop you.
00:31:40
Of all my years of disability advocacy, I think my opportunity to be one of the voices contributing to the Charter Disability Amendment was probably the most important one of all.
00:31:54
And it came, you know, when I was in the middle of the bar exams.
00:31:59
So don't feel that you've got to wait a later.
00:32:02
You make your greatest contributions while you're a law student.
00:32:07
Don't feel like that means the rest of your career is a denouement or something.
00:32:11
But I'm saying don't feel like you've got to wait.
00:32:14
And the second thing, and this is really important, the objective circumstances when we started the campaign would have suggested that what we were trying to achieve was impossible.
00:32:30
And yet we won.
00:32:32
I called the memoir Swimming Up Niagara Falls because that's what it felt like we were doing.
00:32:37
But guess what?
00:32:38
We got there.
00:32:40
What that should, I hope, convey to you is when doing this kind of social justice advocacy, the fact of the matter is the circumstances may look objectively impossible.
00:32:52
That should not stop you.
00:32:57
Don't let it stop you.
00:33:00
Sometimes you don't get there, but heck, sometimes you do.
00:33:03
So what does this right mean in Section 15?
00:33:07
You get a chance to read case law and so on, but let me talk to you, at least in the abstract first.
00:33:14
The fact, okay, what it really means is much more than we talked about back in 1982.
00:33:21
Back then we talked about laws that discriminate.
00:33:24
And yes,
00:33:25
Laws that discriminate against people with disabilities, yep, they should be contrary to the charter and less justified as a reasonable limit under Charter Section 1.
00:33:36
But there's much more to it.
00:33:38
The charter regulates much more than laws.
00:33:41
It regulates government action.
00:33:44
Government action that discriminates based on disability also violates Section 15.
00:33:52
It goes even further.
00:33:53
In an important case called Eldridge, which I'm going to talk about in a minute, it was even extended to private programs or private actors that implement government programs.
00:34:04
In Eldridge, it was extended to hospitals.
00:34:09
Private hospitals implementing government healthcare programming.
00:34:16
Charter Section 15 applies there.
00:34:19
It means that when government makes laws,
00:34:21
or implements laws, adopts programs, or implements programs.
00:34:26
They must not discriminate against people with disabilities.
00:34:33
And that means, in part, that when government designs programs, it's not good enough for them to design a program, leave us out, and then maybe later someone sues and says, hey, can you fix it?
00:34:44
They've got to actually take into account our needs.
00:34:48
when they design the program, so that everyone can benefit equally from the program or the law.
00:34:56
That's at its core what it means.
00:34:58
Now, I'll warn you, if you read some of the Section 15 case law that you're going to have to read in first year constitutional law, it's the same concept I've just shared is expressed, but in incredibly obtuse judicial language.
00:35:17
Supreme Court's been struggling for about 40 years to figure out how to describe the formulation or test for equality.
00:35:26
And at some time or other, they've taken every equality scholar's terms, aphorisms, suggested formulae, and put them in a judicial blender and hit puree.
00:35:42
And that's kind of what we're left with.
00:35:43
And you will find it frustrating trying to figure out what it all means.
00:35:47
And I want to assure you, it's not you.
00:35:51
You're going to read them and sometimes go, is there something wrong with me?
00:35:54
I don't get it.
00:35:56
I mean, okay, I get the verb and the noun and all that stuff, but I don't get what they're saying.
00:36:02
It is not well-written and it is not clear.
00:36:06
And I think if you take the way I just expressed it to you, will find it
00:36:12
Consistent with what the court says, but much easier to understand and implement.
00:36:18
Core to the guarantee of equality, based on that Eldridge case and some other cases, is a duty on the part of government or those delivering government services to accommodate the needs of people with disabilities so they can fully participate in and fully benefit from
00:36:40
the program or activity in issue.
00:36:43
It's not an unlimited duty to accommodate.
00:36:46
It's subject to the Section 1 reasonable limits requirement.
00:36:51
In the case of Eldridge, told you I was going to get back to it, in the case of Eldridge, the accommodation was providing sign language interpretation in a hospital emergency room for a deaf patient.
00:37:06
Mrs.
00:37:07
Eldridge was pregnant,
00:37:10
and she needed to, she came to the emergency room to prematurely give birth to twins.
00:37:17
The government provided funding for the hospital, the ambulance, the doctors, the nurses, the emergency medical techs, the medications, everything except sign language interpretation.
00:37:32
Communicating with your doctor is essential to getting healthcare services.
00:37:38
Things like
00:37:39
describing your condition, describing your symptoms, the doctor telling you, oh, basic things like, is it a boy or a girl?
00:37:49
Is it alive?
00:37:51
A diagnosis?
00:37:54
A prognosis?
00:37:55
Those are all essential to these medical services that are part of our public, government-funded, and regulated healthcare system.
00:38:05
The hospital tried saying, oh, but we're a private organization.
00:38:08
Or the government tried saying, this is delivered by a hospital.
00:38:11
The Supreme Court of Canada said, nope, the duty to accommodate in the case of a government-funded program extends to private actors delivering that program.
00:38:20
That's huge.
00:38:24
So how is this working?
00:38:28
in the front lines of real life for people with disabilities, we continue to face enormous barriers, especially or not exclusively in the private sector, I should say, but as well in this very sphere that the charter applies to.
00:38:45
We still face barriers in healthcare.
00:38:50
My last episode that dropped last Friday,
00:38:53
was about those barriers of my podcast, I should say.
00:38:56
My last episode was about that.
00:38:59
We face barriers, and I could give an entire lecture, much less a course on this, extensive barriers in the K-12 education system.
00:39:11
That is governed by the Charter of Rights as well.
00:39:16
In other words, the dream of Eldridge, the requirements of Eldridge, are not living out in practice.
00:39:25
I don't want to say no one's doing anything.
00:39:27
It's just that the requirements that are in there are not being honored across the board.
00:39:34
There are substantial cases of them not being honored or fully honored, even this many years.
00:39:43
after the Charter of Rights was enacted and Section 15 went into force.
00:39:50
So what do you do?
00:39:52
Well, let me turn finally to the range of responses to all of this.
00:40:00
The first response is, of course, you're thinking as law students, as soon to be lawyers, well, let's take some cases.
00:40:08
Let's go litigate this.
00:40:10
And that is an important tool.
00:40:13
I don't, for a moment, denigrate its importance.
00:40:19
But you've got to understand the challenge associated with litigating these.
00:40:25
First, you've got to get a lawyer, and you've got to get a lawyer who knows something about disability and disability equality.
00:40:37
Setting aside the cost of retaining a lawyer, many people with disabilities disproportionately live at or below the poverty line, the cost of litigating may be prohibitive, or if they had that money, they got much more pressing priorities than litigating a charter claim.
00:40:59
The second problem is that if you want to use the legal system to your advantage,
00:41:07
The sad and unfortunate truth is that our legal profession is not well-trained to serve the legal needs of people with disabilities.
00:41:19
Why is that?
00:41:22
And how do I know that?
00:41:23
Well, I know that as a result of research which led me to write an article published in the Windsor Yearbook of Access to Justice a few years ago called People with Disabilities Need Lawyers Too.
00:41:36
in which I provide a blueprint for law schools on how to teach more about this in law schools.
00:41:42
What I found through my research is that our legal education system across the country, and I'm not singling anybody out for this, our legal education system does, I think, a darn good job at training law students to serve clients, as long as the clients have no disabilities.
00:42:03
Again, not the result of a conspiracy,
00:42:06
But had there been a conspiracy, our legal curriculum, our school curriculum, would look a lot different.
00:42:12
There are any number of areas, I identify them in my article, substantial number of courses, I list 30, I could add more, where we could add disability content.
00:42:25
Family law, what if clients
00:42:29
one of the parents or one of the kids have a disability.
00:42:31
How does that factor into custody or access or support?
00:42:37
Tort law, how do we evaluate disability in remedies to torts?
00:42:44
Property law, how do we deal with systemic barriers in physical property facing people with disabilities?
00:42:52
Criminal law, disproportionately the people either charged with crimes
00:42:58
or victims of crimes, or both, have disabilities.
00:43:03
And yet our criminal law tends to be focused on disability as some kind of an exception thing, like not criminally responsible or fitness for trial, not as main consumers of the criminal justice system.
00:43:19
We haven't built this historically into our law school education.
00:43:24
Now, things are changing.
00:43:28
I was brought in to try to bring about reforms at Osgoode for 7 1/2 years after I retired, and now to the credit of three law schools, Queens, Ottawa, and Western.
00:43:40
That's what I'm here doing right now.
00:43:44
And faculty members and students together are really interested in this.
00:43:49
No one's against this.
00:43:51
It's a question of how to do it.
00:43:54
But if you're going to use the charter using existing lawyers out there, I'm not saying none of them know how to serve clients with disabilities, but there's still a lot of barriers to legal services facing clients with disabilities.
00:44:08
We need to fix it in the long run through our law schools, but in the short run, we've got immediate needs.
00:44:14
The second problem with using litigation is you've got to be ready.
00:44:19
for the fact that the other side of the case, typically the government, is going to lawyer up with government lawyers.
00:44:25
I used to be one of them.
00:44:27
And their job is to defend the government.
00:44:31
Perfectly reasonable, that's what they're there for.
00:44:34
And that means you could be involved in litigation for years and years and years.
00:44:38
And the moment you bring a litigation, you know what happens if somebody presses a cabinet minister on that issue?
00:44:45
You're pressing for reforms to funding for autism services or whatever.
00:44:50
Once it's being litigated, the minister says, well, I can't comment on it.
00:44:54
It's before the courts.
00:44:56
Well, they certainly can comment on it.
00:44:58
That's the classic political cop-out, but it is going to happen.
00:45:03
You run the risk.
00:45:05
that the issue you're lobbying on and litigating at the same time could get politically frozen, potentially for years.
00:45:13
After all, cabinet ministers, and I've lobbied many of them, they're decent people, but they're only in their office for typically two years in a particular portfolio.
00:45:23
And if they see an issue coming and it goes before the court, I imagine they go like, yippee, now I conduct the issue, it's somebody else's problem, and move on to something else.
00:45:36
So what else do you do?
00:45:37
I'm not saying don't do charter litigation, but I'm saying, and believe me, I've used it, but I'm keenly aware of the limits to it.
00:45:48
So what do you do?
00:45:50
Well, the other option, and it's an option I've turned a lot of my volunteer activity to in the past three decades, predominantly, has been to come up
00:46:03
with strategic ways to implement charter rights beyond litigating.
00:46:10
And what this led to, or how this began, was about 31 years ago, almost 32 years ago, a number of us, a decade after disability got into our charter of rights, a decade after disability got into our human rights code,
00:46:32
seeing that progress was too slow, decided that we needed a new law in Ontario.
00:46:39
Not a new law that would replace the Charter or the Human Rights Code, but a law that would ensure that they're effectively implemented without us having to litigate barriers one at a time.
00:46:54
After all, if you've got to litigate barriers one at a time, yes, some people will voluntarily comply, but too many people won't.
00:47:03
Either they don't feel they have to, or they're not worried about it, or they just don't know about it.
00:47:10
Moreover, a problem we had with the Charter of Rights, and with the Human Rights Code comparable guarantee that bans discrimination against people with disabilities and other equality-seeking groups in employment, housing, and access to goods and services, the other problem is if an organization wants to do the right thing,
00:47:32
If you're a school principal and you want to do exactly what you should be doing for students with disabilities, if you pick up the Human Rights Code or the Charter of Rights, you'll see these great words like equal protection or duty to accommodate, but it doesn't tell you what to do.
00:47:50
They want to know what to do in clear language.
00:47:55
So this led a number of us in 1994
00:48:01
To go to the Ontario legislature and say, we need a new law that will effectively implement our charter rights and our human rights code rights without us having to litigate one at a time and a law that would let obligated organizations know what they got to do.
00:48:18
Without having to go to a hearing and have a big fight over what it is they got to do.
00:48:24
This law took us a decade to win.
00:48:28
I had the privilege of leading the fight for it.
00:48:31
In another time, I hope at the law school, I'd love to tell you some of the story of how we won it, but it resulted in 2005 after our coalition did grassroots lobbying across the province for a decade.
00:48:48
In 2005, the enactment of the Accessibility for Ontarians with Disabilities Act, short form is AODA,
00:48:57
I chair the AODA Alliance, the website AODAalliance.org.
00:49:03
What does it require?
00:49:04
Well, it really, think of it as enacting Eldridge.
00:49:11
It required the government of Ontario to lead us to a fully accessible province within 20 years, 2005 to 2025.
00:49:20
It required the government to do that by enacting and enforcing
00:49:26
a series of laws called accessibility standards that would precisely explain to obligated organizations in the public and private sectors what they got to do and when they got to do it by.
00:49:40
And it required the government to enforce them.
00:49:46
After we won this law in Ontario, several other provinces passed somewhat similar laws, Manitoba, Saskatchewan,
00:49:55
British Columbia, Nova Scotia, 2019, the federal government, a law called the Accessible Canada Act.
00:50:02
They all have variations, but along the same themes.
00:50:06
So how's it going?
00:50:08
How's it going?
00:50:09
Well, guess what?
00:50:10
Not so good.
00:50:12
We've made more progress than we would have had we not passed it.
00:50:16
But guess what?
00:50:17
I don't know if you've noticed, last year was 2025.
00:50:22
We do not have an accessible province.
00:50:25
We are far from it.
00:50:26
We have made progress, but the government's failed in three ways.
00:50:33
First, it's passed some accessibility standards, but they're too weak, they're too narrow, and they don't cover most of the barriers we face.
00:50:41
Second, they have enforcement powers, but they haven't used most of them, and they, excuse me, haven't used them well.
00:50:50
And third,
00:50:53
The government is supposed to, and we need them to, provide useful tools for the obligated organizations to know what they need to do, because that's more likely going to get them to do it.
00:51:06
And the government's done some of that, but nowhere near enough.
00:51:11
And the current government in Ontario, our coalition's non-partisan, but our current government in Ontario has done a
00:51:21
an especially abysmal job.
00:51:24
And our updates tell you about that and what we're trying to do about it.
00:51:28
So what do you do?
00:51:30
Do I give up?
00:51:31
Do I get depressed?
00:51:32
Do I think it's hopeless?
00:51:34
None of the above.
00:51:37
Why?
00:51:38
Used to swimming up Niagara Falls.
00:51:40
It's just another swim.
00:51:43
If you sign up for our updates, you'll see that we keep you posted of what the next steps are.
00:51:50
And virtually every update has a section saying how you can help.
00:51:53
I believe the future is in crowdsourcing political action, getting people, law students, lawyers, laypeople, whoever, doing more and more about this.
00:52:09
And their combined force, just as it won us the passage of the AODA, will win us its effective implementation.
00:52:19
And my podcast is just another way of trying to accomplish that.
00:52:25
The aim of the podcast, as I said at the start, is to give people practical tools, ideas from the people who've been out there fighting these battles on how to do it, how to make a difference.
00:52:40
Whether you're part of a big organization or in an upcoming episode, I expect you're a parent of a kid with a disability,
00:52:48
just trying to get your kids' learning needs addressed at school, and all points in between.
00:52:57
So what does this say to all of you?
00:53:01
I'd like to conclude with basically 2 observations, and then I'll welcome your questions.
00:53:08
The first is, I believe that we lawyers and future lawyers have a
00:53:17
a special role to play, not because we are special, but because we have a special gift.
00:53:24
The gift we have is training in law, training in persuasion, training in advocacy.
00:53:31
We're not the only people who know how to advocate, but what unites us is that that's what we're here to learn how to do.
00:53:39
We are therefore in a special position to deploy those skills.
00:53:47
Not only that, but we in law school and in law, we will deal with individual problems and see how possible ways to solve them or argue about them, case after case.
00:54:00
But we will see patterns of recurring problems.
00:54:04
People face individual barriers, they keep having to go file human rights cases, and so on.
00:54:11
We are in a unique, if not special, if not unique, have a unique vantage point to see these patterns and to try to identify systemic ways to solve them so that the swim up Niagara Falls doesn't have to be so steep and so far.
00:54:33
I believe those two factors combine to impose upon us
00:54:39
a duty to engage in social justice advocacy.
00:54:43
For whatever social justice cause matters to you the most.
00:54:47
Mine is disability equality, yours may be something very different.
00:54:52
Put simply, if you wish to be admitted to the bar of justice, it's my contention that we have an ethical duty to admit ourselves at the same time to the bar of social justice.
00:55:08
You have the opportunity to do that in your practice, but you also have an opportunity to do that in law school.
00:55:13
And as I learned, just because circumstances landed in my lap when I was in the bar admission course, you never know when the opportunity will come.
00:55:23
But let me conclude as well by trying to summarize what this all means.
00:55:31
I was walking home one day after a bar admission class,
00:55:36
before I got invited to appear before the Joint Committee of the Senate and the House of Commons, when it looked like it was extremely unlikely that we would get that opportunity.
00:55:46
But I was daydreaming and thinking, if we ever got there, what would I say?
00:55:52
And I kind of came up with a catch line.
00:55:55
It's the line that I concluded with.
00:55:57
It's the line that I, excuse me, I concluded my presentation with back in 1980.
00:56:04
to Parliament, and it's the line I'm going to conclude with today, as I've used in many speeches.
00:56:11
It's said that justice is blind.
00:56:12
That's A cliche.
00:56:14
It's something to which we aspire.
00:56:17
If justice has had the opportunity to experience blindness, equality demands that blind people and all people with disabilities also have the opportunity to experience justice.
00:56:28
Thank you very much for coming today, and I welcome your questions.