David Lepofsky
Bachelor of Law (University of Toronto)
Called to the Bar 1981
Masters of Law 1982 (Harvard University)
Volunteer Disability Rights Advocate
aodafeedback@rogers.com
www.aodaalliance.org
June 12, 2009
Why is Section 15 important to teachers, students and schools?
The equality guarantee for people with disabilities in the Charter applies to equal access to all the opportunities that, government provides us, whether it's public transit, or jobs within the government, or government services, or access to health care. They are all very important. But one that is very important particulary that I recall I mentioned when I was arguing this before, issue before the committee of the Parliament back in 1980 was the importance of achieving equality of opportunity for kids with disabilities in school. Kids with disabilities should be able to fully participate in public schools. They face barriers unfortunately. They did back then and they still do now. Some of them are physical barriers like schools that you physically can't get into because you are in a wheelchair. Some of them are information barriers like not being able to get some books in the format that people can read if they are blind or dyslexic. There is a whole bunch of different kinds of barriers that we face. Section 15 of the Charter is one important guarantee of, or way to promote equality for people with disabilities, kids with disabilities in schools. And it's important because if you can't get a good education you are going to have trouble getting a good job. Education is, is important for so many reasons. If you don't get a good education and if you can't be included in the regular school system if you want to be mainstreamed then you can't, you don't get the opportunity to make friends in your community. It's very important.
This was a fight I understood personally because long before the Charter was passed or even proposed back in the early 1970's, I had good partial vision and my eyesight got worse gradually and my school board was pressuring me and my family for me to go to a school for the blind in Brantford and I didn't want to. I mean it's fine if they have a school for the blind for kids who want to be there but I didn't want to be there. I wanted to stay in my local school with my friends and so on. And my mother fought the good fight and pressured or embarrassed the school and the board of education letting me stay in the mainstream but I wouldn't, if, if they had refused, and by the way I did quite well in school and shocked the people who were opposing me. We were fortunate that my mother fought valiantly and won the debate, but if they'd refused, we couldn't go to court.
Now with the Charter you can, and it's also backed by other laws that guarantee equality like the Ontario Human Rights Code. Equality in education is really important and there is a decision, one of the first decisions the Supreme Court of Canada rendered, interpreting equality for people with disabilities under the Charter is a case called Eaton and it holds that equality includes equal access to education. It includes a duty on schools to accommodate the needs of kids with disabilities in the classroom. So it's not just a matter of saying, "Well, here's the classroom, everybody should sink or swim. This is the way we teach. These are the books we give you. This is the building we use. If you fit in great and if you don't too bad." Equality in the Charter of Rights says something very different. It says that you know what, the goal here to which you are entitled is the opportunity to fully participate and be fully included in education and where it is possible to accommodate. If, if you fit in great. If you don't fit in then the school board has a duty to accommodate your needs.
The other thing the Eaton's case, the Eaton case said that's really important is this. A school board in deciding on these sorts of issues has to look at each kid as an individual and has to examine their abilities and their accommodation needs as an individual. In other words, the school board can't just say, well we have a policy. Blind kids they are going to go to school for the blind, or whatever or that you are going to use a particular technology but no other. They've got to look at whether your disability is a physical disability like needing a wheelchair or a sensory disability like being blind or being deaf or whether it's a mental disability, a development disability, whether it's a learning disability or a mental health issue. Everyone is an individual. They all have different, they all have individual talents and individual needs. And in fact you could have two people with the exact same disability, but it could affect them differently and they could be accommodated very differently.
