DRPI Canada Monitoring Policy and Law Theme

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DRPI CanadaMonitoring Policy and Law Theme

• By Miha Dinca, Roxanne Mykitiuk, Yvonne Peters,
  Michael Prince and Ken Singh

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Monitoring Policy and Law Team Members

• Roxanne Mykitiuk, theme leader, Osgoode Hall Law
  School
• Yvonne Peters, theme leader, Disability rights
  legal expert
• Michael Prince, University of Victoria
• Marcia Rioux, Project Director, York University
• Mihaela Dinca, Project Coordinator

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Monitoring Policy and Law Organizational
Partners

• ARCH Disability Law Centre
• Canadian Human Rights Commission (CHRC)
• Centre Interdisciplinaire de Recherche en
  Réadaptation et Intégration Sociale (CIRRIS)
• Office for Disability Issues, Government of
  Canada (ODI)
• Office des Personnes Handicapées de Québec (OPHQ)
  
• Raoul Wallenberg Institute of Human Rights and
  Humanitarian Law (RWI)

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Objectives

• Analysis of legislation, policy and case law at
  federal and provincial levels (corresponding to
  the 4 monitoring sites for Monitoring Individual
  Experiences) to assess the human rights
  protections for Canadians with disabilities
• Identify the changes required to existing legal
  and policy frameworks to improve the lives of
  people with disabilities in Canada

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Research questions

• How are the federal and provincial
  responsibilities for disability allocated?
• What are the approaches to disability employed by
  policy makers and how these impact on the
  realization of disability rights ?
• How have Canadian courts and statutory human
  rights bodies addressed disability issues?

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Research flow
Research tool Law and policy template
Data collection
Data analysis
Dissemination of findings
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Law and policy assessment template

• Developed in the context of DRPI-International
  and adapted to the Canadian context (ongoing
  process)
• Grounded in the Human Rights Approach
• Designed to collect data and monitor trends in
  legislation, case law and policy
• Organized into headings/questions (based on
  international HR instruments)

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Methodologyto implement the template

• Scope Guidelines/consistency of data collection
  process
• Components
• Policy database
• Legislation database
• Caselaw database

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Methodology - components

• Policy database
• Structure
• Distinction between interpretive policy and
  other policy
• Content
• Federal/provincial government publications
  committee reports
• Discourse addressed by respective doc

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Methodology - components

• Legislation database
• Structure
• Within each Question legislation organized by
  jurisdiction
• Web links created to the corresponding
  legislation
• Content
• Interpretative policy that gives substance to
  respective legislation
• Regulations

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Methodology - components

• Caselaw database
• Structure
• Within each question link to the legislative
  provision caselaw interprets
• Content
• Substantive detail on the case facts/legal
  issues/major line of argument
• Interpretive notes (to provide reader with line
  of logic used by reserachers to get a certain
  conclusion)
• Interpretive policy that shed lights on the case
  law
• 2 category of cases
• Cases that stem from common law principles
  instead of legislation
• Non-disability related cases that bear
  significance to disability issues

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Methodology - components

• Synthesis Documents
• Integrate main findings, identify gaps, and
  policies that are consistent/inconsistent with
  the legislation , and pinpoint where the
  legislation is interpreted narrowly or construed
  broadly
• Limitations

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Research Process

• Analysis of legislation, case law, policy and
  legal institutions
• Key informant interviews
• Purpose and effect analysis reconciliation
• Create a framework interweaving analysis and
  results

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Sample Data

• Legislation
• BC Human Rights Code, s.8
• Policy
• Interpretive Policy - The Duty to Accommodate
  after Meirorin and Grismer
• Non-interpretive Policy- Disability and Social
  Policy in Canada, 2e (2006) by Mary Ann McColl,
  Lyn Jongbloed (eds)
• Case-law
• C.U.P.W. v. Canada Post Corp., 2001 BCCA 256, 87
  B.C.L.R. (3d) 341
• MacBain v. Canada (Canadian Human Rights
  Commission), (1985), 22 D.L.R. (4th) 119

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Preliminary Findings

• H1Q1 - Legislation prohibits discrimination on
  the grounds of disability but disability is not
  clearly defined
• H1Q2 Common law principle of parens patriae
  tempers individual autonomy
• H1Q4 broad and complex nature of disability

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Preliminary Findings Contd

• H1Q5 Overlaps with H1Q3 (equal participation)
  central to employment/education
• H1Q6Q7 Designation v. Process what
  constitutes a barrier?
• H1Q8 Both case law and legislation are equally
  apt at addressing indirect discrimination

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Preliminary Findings Contd.

• H1Q9 Exclusion to providing reasonable
  accommodation
• BFORs
• Good Faith Exclusions
• H1Q10 - Good faith requirement to provide
  reasonable accommodation

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Next Steps

• Finalize data collection analysis
• Development of a database
• Scoring Method
• Conduct key informant interviews
• Integrate themes findings with the other themes