A Qualitative Look at Serious Legal Problems for People with Disabilities in Central Canada

• Previous Page
• Table of Contents
• Next Page

Recommendations and Conclusion

Fifty-nine percent of human rights complaints filed with the Canadian Human Rights Commission in 2017 were due to discrimination because of a disability.6 The rights-based model of legal remedy has been amply critiqued. This model, which places the onus on under-resourced people to seek individual remedies when they have been harmed, often in cases of systemic discrimination, in part helps explain why people with disabilities continue to experience both infringements on their rights and barriers to accessing justice. For example, while access to justice is an important part of the rights-based framework, some critics have noted that existing frameworks, including the United Nations Convention of the Rights of Persons with Disabilities (CRPD), fail to provide safeguards and details about how this access to justice should be ensured. 7 While this critique has frequently been levied with regard to justice for people with disabilities more generally, the same concerns—essentially, questions of how rights are practically enforced—apply to rights-based frameworks in general.

The findings of this study indicate that the rights of people with disabilities are by and large not being enforced, and that the enforcement of anti-discrimination laws and regulations regarding disability through individual complaints processes is both ineffective and harmful to people with disabilities. Stakeholders and participants called instead for systemic change, and for the tools and resources to create that change.8

The study consulted 11 stakeholders engaged in disability and justice issues. This consultation included three one-on-one interviews and one online session hosted by a national disability group with eight stakeholders in attendance. These sessions were largely informal and provided a chance for the research team to describe the study being undertaken and gather feedback from stakeholders about important aspects that help contextualize the issue of how people with disabilities interact with the legal system. Many of the stakeholders with themselves people with disabilities who had experienced serious legal issues. While their perspective tended to focus on systemic issues and the context in which legal problems arise, they also drew on elements of lived experience.

Two key themes emerged in the stakeholder discussions: the role of systemic barriers and the limitations of this research.

The role of systemic barriers

Significant systemic issues must be accounted for in research on disability. Ableism shapes both how people with disabilities are treated (and mistreated) in the world and the justice process itself. More than one stakeholder mentioned how common the experience of discrimination is for people with disabilities and noted that these experiences often start early in life, including in the education system. They stated that because of the pervasiveness of systemic barriers, many people with disabilities learn early on that their rights will be violated. Unfortunately, many people with disabilities experience rights-based violations as normal. Over time, they may come to expect and in some ways accept them. Acknowledging this reality, and its lifelong character, can help clarify how the situation may lead to exhaustion and trauma for many people with disabilities.

Research limitations

One key theme that emerged in stakeholder discussions was the limitations of this research process itself. Indeed, both stakeholders and participants noted that geography radically alters lived experience. While this study included a limited sample of participants from Ontario and Quebec, these provinces have very different frameworks, resources and supports, making legal processes difficult to compare between the two provinces. Province of residence and geography (e.g. urban versus rural) dictate what kinds of support people with disabilities in Canada can access, which in turn shapes the legal process in significant ways.

Stakeholders also noted the ways COVID-19 may influence data collection. COVID-19 has radically re-shaped policy on the ground (i.e. the ways people access health care, services and supports), and has also shaped the lived experiences of people with disabilities in significant ways (for instance, they are at a higher risk for COVID-19 complications and mortality). In undertaking this research at a time when people with disabilities were experiencing even more stress and uncertainty than usual and may have been without the kinds of support they had pre-COVID (home support, community support, social networks and so on), the research team held intersectionality as an important consideration. This means the research team sought to reach members of the disability community who are often left behind in the research process. Yet intersectionality also meant that many of the most marginalized people in the community were also at the greatest risk and were the most underserved during this unusual time. This meant the participants in this study were under greater than usual stress and facing more than their usual uncertainty, which likely shaped the process.

One stakeholder also noted that terms within the legal process itself could have put restrictions on what information participants could share regarding both ongoing and resolved issues (i.e. non-disclosure agreements, confidentiality, and other limitations). While the research team tried to mitigate this by making the process as comfortable and anonymous as possible, for privacy reasons the research team could not use all the data collected.

This study helps shed light on the specific impacts the legal process has on people with disabilities and on the need to use an intersectional lens in order to properly understand these experiences. Participants and stakeholders called for real and meaningful action to reduce the frequency, harms, and systemic nature of these persistent experiences. There is often no clear, accessible, or linear way forward for them to resolve these issues. These are not isolated experiences but rather part of a larger lifelong pattern of discrimination, and the ways the justice system conceptualizes resolution do not fully meet individual needs.

Despite the skepticism noted earlier, in general participants were eager to share their insights, grounded in their lived experiences, toward potential recommendations to make the legal process more accessible. Based on these insights, we have developed the following five recommendations of areas to which the Department of Justice Canada should devote further consideration.

1. New conceptualizations of “justice.” Participants noted the need to conceptualize “justice” and the “justice process” in ways that are more reflective of the needs of people with disabilities and other marginalized groups. A conceptualization grounded in punitive actions has failed to effect any systemic change and may in fact perpetuate harm among marginalized groups. Here, transformative justice models and others were mentioned as models that better reflect community needs and help achieve useful outcomes.
2. A move away from individual complaints as a tool for resolving systemic problems. Related to this first point, current research indicates that the reliance on an individual complaint process as a tool for enforcement does nothing to address the broad changes necessary to address systemic discrimination.9 This was echoed by the majority of participants, who noted that they sought resolutions that ensured others did not have experiences like theirs moving forward. Additionally, given the impacts of the legal process on participants, they noted the need for solutions and processes that do not re-traumatize victims or place the onus on them to address discrimination on protected grounds.
3. Better community legal support services. Participants overwhelmingly noted the importance of community organizations, including ones focused on legal issues, in supporting the needs of persons with disabilities. Yet they also said that years of persistent cuts have made the availability of these supports scarce. We need to recognize and prioritize the vital role of community and grassroots agencies in supporting people with disabilities and advocating for change.
4. Intersectionality. On a related note, community groups and other allied groups grounded in lived experience must engage the communities they serve through an intersectional lens. Individuals should never have to choose one aspect of their identities to address in a human rights violation. The interconnected nature of their identities and experiences should always be taken into consideration and supported.
5. Plain language resources and flexible options. The law is difficult to navigate, even for those who feel comfortable with this process. As such, there is a need for clear and plain language resources that help individuals understand the process. We must also understand that there is often no clear or linear route to justice, so we need to ensure there are flexible and accessible routes that best meet individual needs in pursuing justice.

Overall, the data gathered for this study helps to better understand the experiences of people with disabilities with respect to the justice process. Throughout the research process, participants and stakeholders said it was crucial to move beyond merely understanding these experiences and barriers. They called for real action grounded in their needs and focused on systemic change. DAWN Canada is hopeful that this report can be a first step in moving toward this goal.

---

• Previous Page
• Table of Contents
• Next Page