Barrier Free Manitoba

Following is the written submission that BFM submitted to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities on October 17, 2018.

We look forward to appearing before the Standing Committee in Ottawa on October 24, 2018.

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Barrier-Free Manitoba
Submission on Bill C-81 to the Standing Committee on Human Resources, Skills and Social Development and the Status of Persons with Disabilities
October 17, 2018

Pursuant to our October 10, 2018 email message sent to Minister Qualtrough and Standing Committee Members, Barrier-Free Manitoba (BFM) wants to indicate our strong support for, and endorsement of, the views expressed and the calls for significant amendments to Bill C-81 as outlined in briefs submitted by the Accessibility for Ontarians with Disabilities Act Alliance (September 27, 2018) and the ARCH Disability Law Centre (October 1, 2018) .

As a matter of introduction, BFM is the cross-disability, non-partisan, community initiative that has worked for the last decade on provincial accessibility-rights legislation in Manitoba. Our first five years of work led to the all-party, unanimous member passage of the landmark Accessibility for Manitobans Act (AMA) in December 2013. Our work since has focused on promoting the full and timely implementation of the Act. Our support for both the AODA Alliance and ARCH briefs is rooted in the experience we have gained through those ten years.

BFM originally called for accessibility-rights legislation in our province based on a global scan conducted in 2008 of practices and developments related to furthering the human rights of persons with disabilities. The 2005 Accessibility for Ontarians with Disabilities Act (AODA) stood out as the most promising model in this review.

The powerful potential of the AODA model was compelling. While both The Canadian Charter of Rights and Freedoms and Human Rights Codes have proven to be essential, they have not provided, nor can they be expected to provide, for the proactive, orderly and timely removal of the pervasive barriers faced by persons with disabilities across Canada, as well as the prevention of new barriers. The AODA model was firmly grounded in human rights traditions and values, addressed key elements of the United Nations Convention on the Rights of Persons with Disabilities, and was fully consistent with Canadian government systems and jurisprudence. Moreover, as a legislative rather than a programmatic approach, the AODA model promised systemic remedies and durability.

There were two significant limitations with the AODA model. First, the model did not seem to address the inadequacy of disability and related supports (often provided by government on a discretionary basis, or so government has often asserted), nor did it address income adequacy. Both adequate disability supports and income are critical aspects of full accessibility for persons with disabilities.

Second, legislation needs to be robustly implemented in order to have real and lasting impact. As such, much of the power and promise of the AODA model would rely on effective implementation that, in turn, would rely on sustained political commitment and government leadership.

With the caveat that no one law or initiative can be expected to address all issues (the first limitation), we proceeded to advocate for the enactment of AODA-like legislation in Manitoba with the hope that we would be able to address the second limitation.
We worked tirelessly to secure strong support across all the major political parties for the Accessibility for Manitobans Act (AMA).

We were delighted when the AMA passed Third Reading in December 2013 by a unanimous vote in our Legislative Assembly. Indeed, it was the only major piece of legislation that passed with all party support in that sitting of our Legislature. We followed up on this by securing commitments from all major parties to the full and timely implementation of the AMA in the general provincial election held in April 2016.

We also advocated with considerable success to ensure that the AMA incorporated a “grand” goal of full accessibility with a timeframe attached (substantial progress to be achieved by 2023). We advocated, again with considerable success, for the inclusion of language, deliverables and accountability measures that created clear obligations for government.

To be perfectly honest, we partially discounted the advice we were receiving from other advocates about the critical importance of such measures. Having secured such strong, broad and repeated political support, we had developed some comfort and confidence that we could depend on government to meet the letter and spirit of the AMA.

Over the ten years of our initiative, BFM has worked with two different governments led by three different Premiers. We have worked with two different departments with lead responsibility for the legislation that in turn were headed by five different Ministers and six different Deputies. We have remained, for the most part, the only actor that has followed developments from the initial call for the legislation through to its current stage of implementation.

Following the flourish leading up to and shortly following the passage of the AMA, we have grown increasingly concerned about the slow, weak and incomplete implementation efforts. Now half way through the decade of progress toward full accessibility promised by the AMA, only one of five promised accessibility standards has been developed, a compliance framework has not yet been established, government has only rarely met timelines related to the Act, and implementation efforts continue to be substantially under resourced.

While there has been recent reason for cautious optimism, implementation efforts to date have been a significant disappointment. This is the case despite the all-party, all-member support for the passage, the unequivocal political party commitments to robust and timely implementation and with what we had thought were the clear performance requirements incorporated in the Act.

It has also taken incredible efforts from our diverse and heavily under-resourced disability communities to nudge government toward greater compliance in meeting its own obligations under the AMA.

We are gravely concerned that Bill C-18 does not only replicate the AMA’s weaknesses but actually compounds them.

• The Bill does not include a clear goal of a barrier-free Canada or a date by which to achieve this.
• The Bill uses permissive rather than prescriptive language. It enables, it does not require.
• The Bill creates the likelihood of multiple accessibility requirements covering similar barriers with a diffused and fragmented approach to standard development, compliance and adjudication.
• The Bill lodges responsibility for real progress with the government of the day, not Parliament.
• The Bill is also extremely convoluted, it will create confusion for the public, obligated organizations and Canadians with disabilities alike, and will result more in the chasing of tails than forward progress.

While representing a commendable effort with honourable intentions, the Bill is deeply flawed.

As with the implementation of the AMA, measures can and will need to be taken to address these critical weaknesses.

Based on our decade of experience and our careful review, BFM strongly supports the views expressed and the recommendations for significant amendments made in briefs submitted by both the AODA Alliance and the ARCH Disability Law Centre.

We respectfully would like to add a word of caution. You may be thinking that political parties at the federal level are different than those at the provincial level. Or maybe that your party is the different one. Perhaps you are thinking that the federal government is a different and more responsible order of government. You may be thinking that the types of amendments called for in the Alliance and ARCH briefs are excessive.

Our hard won experience strongly suggests otherwise. If the capacity to learn from others is an essential human potential, we ask that you realize this in your review of Bill C-81. Bill C-81 presents a historic and long, long overdue opportunity. We beseech that you not squander it.

In conclusion, we would also like to take this opportunity to highlight one area that we feel merits particular attention, as well as a second area that has not been specifically covered in the Alliance or ARCH briefs.

The area that requires close attention is the lack of any provision in Bill C-81 to address the federal government’s constitutional, fiduciary and special responsibilities in relation to Indigenous People with disabilities. This is covered in recommendation #83 in the Alliance brief and pages 49 and 50 in the ARCH brief.

Disability rates among Indigenous People are roughly two to three times higher than for the general population. Indigenous People are also among the Canadians who face the most severe barriers to accessibility. Both the higher rates and the severity of the barriers faced by Indigenous People are the direct result of government policies that reflect a shameful past and that continue into the present.

These issues and the critical importance of including special measures in this historic federal accessibility legislation to address this tragic legacy were raised in consultations held by the government in Winnipeg in October 2016. They have also been raised in most of the consultation reports submitted by both Indigenous and non-Indigenous organizations.

It is shocking to us that Bill C-81 does not incorporate any special measures to act on these federal responsibilities. The ARCH brief, for example, sets out nine areas where Bill C-81 fails to address the unique barriers experienced by Indigenous persons with disabilities.

It remains uncertain how or if Bill C-81 can be amended to address these critical shortfalls. What is clear is that an immense amount of committed and sustained work lies ahead to ensure that the federal government fulfills its manifold responsibilities to Indigenous People, both as Nations and as individual members of these Nations with disabilities who share the same basic right to accessibility as all others in Canada. Bill C-81, from our perspective, represents a step backward from rather than a step toward reconciliation.

The second area that we would like to highlight is the absence of any explicit reference to The National Building Code of Canada, in Bill C-81 or in either of the Alliance or ARCH briefs. The National Building Code of Canada is not only applicable in areas of federal jurisdiction. It also plays a profound role in shaping the building codes that are developed and adopted by each Canadian province. At both the federal and provincial levels, the building codes and the current limited levels of accessibility provided for, result in costly and preventable barriers being perpetuated and newly created every day in built environments across the country.

It is very worrisome to us that the current plan by our provincial government is to exclude consideration of the accessibility of buildings under the landmark Accessibility for Manitobans Act. That’s right. While the Manitoba government has committed to develop an Accessible Built Environment Standard under the AMA, it will not include buildings.

Rather, we have been advised that the Accessible Built Environment Standard under the AMA will be restricted to barriers outside of buildings. Incredible though it may seem, the Province has advised us that it will rely on processes and outcomes related to The National Building Code of Canada to address the pervasive accessibility barriers in housing, offices, factories, entertainment venues and commercial buildings that prevent Manitobans with disabilities from exercising their human rights to live, work and recreate as full citizens.

It seems likely that the responsibility for developing strong and effective accessibility standards related to building codes is meant to fall under the purview and duties of the Canadian Accessibility Standards Development Organization (CASDO). However, this remains unclear and we believe that explicit reference needs to be added to Bill C-81 and/or be clarified as part of the Committee’s review of the Bill.

In closing, thank you for the opportunity to provide comment on Bill C-81. We are hopeful that your review will result in significant amendments to substantially strengthen the Bill to proactively meet and hopefully exceed Canada’s obligations under the United Nations Convention on the Rights of Persons with Disabilities, The Canadian Charter of Rights and Freedoms and The Canadian Human Rights Act.

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We invite you to download our submission (Word / PDF).

We are also pleased to provide links to the brief from the AODA Alliance and ARCH Disability Law Clinic referenced in our submission:

• AODA Alliance (Word)
• ARCH (Word)