Three National Organizations were granted leave to intervene at the Nova Scotia Court of Appeal in a case about the right of persons with disabilities to live in their community
HALIFAX, NOVA SCOTIA, CANADA – On 20 June 2019, the Canadian Association for Community Living ( “CACL”), the Council of Canadians with Disabilities (“CCD”) and People First of Canada (“PFC”) (together, the “national organizations”) were granted leave to intervene at the Nova Scotia Court of Appeal in a case which is of critical importance for the human rights of persons with disabilities across Canada. The appeal relates to the legal obligation of a province to support persons with disabilities to live in their communities rather than being confined to institutions.
The appeal was launched by the Disability Rights Coalition (the “DRC”) of Nova Scotia. At the root of the appeal is a human rights Board of Inquiry decision from 4 March 2019 which dismissed the DRC complaint based on a systemic discrimination claim while allowing three individuals complaints. The Decision also found that three individuals had been discriminated against because they had been “needlessly retained” in Nova Scotia institutions such as the unit of the Nova Scotia Psychiatric Hospital known as Emerald Hall.
The DRC filed a human rights complaint seeking a systemic human rights remedy that would require the Province of Nova Scotia to provide meaningful access to all persons with disabilities in Nova Scotia to supports and services to live in the community.
The Board of Inquiry decision found that “successive governments of all political stripes simply ignored everyone over decades and condemned our most vulnerable citizens to a punishing confinement.” Despite this finding, the Board of Inquiry found that there was no systemic discrimination against all persons with disabilities who reside in institutions or who are waiting on waitlists for community living services.
The unique perspective of the national organizations
The national organizations are particularly concerned about the Board of Inquiry’s finding that institutionalization in-and-of-itself is not discrimination. This determination is contrary to the United Nations Convention on the Rights of Persons with Disabilities which was ratified by
Canada in 2010 and provides the right to live independently and be included in the community.
As stated by Joy Bacon, the President of CACL, “the history of exclusion from full participation in society of persons with disabilities is grounded in historical and societal devaluation which views people with disabilities as less than fully human. Institutionalization is a direct result of the discriminatory perception of persons with disabilities as being ‘less worthy’ than others.” Kory Earle, President of People First Canada states, “most Canadians would be shocked to learn that large institutions which lock people with disabilities away continue to exists in Canada.” Through their efforts in monitoring deinstitutionalization across Canada, the national organizations have observed that Nova Scotia is most reliant on institutions to house persons with disabilities as compared to other provinces and territories in Canada. Nova Scotia is one of four remaining provinces that continues to operate large institutions. The national organizations have observed first-hand, the significant harms caused by institutions and the importance of community inclusion for persons with disabilities.
The national organizations will be supporting the appeal by the DRC by arguing that the Board of Inquiry’s analysis of systemic discrimination was flawed. Uniquely, the national organizations will highlight the potential negative impacts of the decision on access to justice for persons with disabilities. The Board determined that it would have to separately consider
the negative impacts of institutionalization on each impacted individual in order to determine whether there was discrimination in each individual case. If accepted, this type of analysis could prevent national organizations such as CACL, CCD and PFC from bringing forward systemic discrimination complaints and would force individuals into time consuming, costly,
and frequently inaccessible legal proceedings.
The Chairperson of the CCD, Jewelles Smith, states: “we are glad we were granted leave to intervene today so that we can participate in this important appeal which could ensure that all persons with disabilities in Nova Scotia receive the necessary supports to live in their community.”