Community Expectations: Compliance and Progressive Realization

Speaking Notes

Prepared by Vangelis Nikias
Council of Canadians with Disabilities
Convention on the Rights of Persons with Disabilities Manager

Canadian Government Conference on the Rights of Persons with Disabilities

Victoria Hall
111 Sussex Drive (Old City Hall)
Ottawa, Ontario
March 23, 2011

1. Introduction

I would like to start by congratulating the organizers of this conference and thank them for the invitation to the community panel.

I also want to express my appreciation to all of you who have registered as participants.

As Minister Finley stated in the House of Commons, marking the first Anniversary of Canada’s ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD), Canada is “a great country”. One of the features which make Canada a great country is our human rights tradition and current framework. We, Canadians take pride in our human rights principles and values which we have enshrined in our Constitution. One of the distinguishing characteristics of the Canadian Charter of Rights and Freedoms is the inclusion of the equality rights of persons with disabilities. Our Charter was one of the reference points during the elaboration process of CRPD. In fact, article 5 of the Convention echoes recognizably our Charter and our human rights law, more generally.

Inclusion in the Charter of the equality rights of persons with disabilities and CRPD share another important characteristic. They were both attained as a result of the active participation by persons with disabilities. And this was accomplished through active and genuine collaboration of Canadian governments with representative disability organizations. In the context of CRPD, the decisive participation of persons with disabilities has been immortalized in the motto:
“nothing about us without us”.

Our presence here today is a strong signal that this proven formula of success will continue to be the basis on which Canada will build in order to achieve the shared goal of continuing to break down barriers, in Minister Finley’s own words.

In the few minutes I have today, I want to address the key issues of compliance and progressive realization.

2. Genuine Compliance

In article 4 of the CRPD, states parties, including federal states, have undertaken “to ensure and promote the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability. To this end, States Parties undertake:
(a) To adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present Convention;”.

This is a very significant and key commitment, as a whole. I do, however, want to underline two phrases in particular:
“full realization of all human rights”, and “for all persons with disabilities”.

This undertaking places firmly on the agenda the question (and it is always a question) whether we are achieving “full realization… for all persons”. In other words whether we are compliant with an international human rights instrument, an instrument that is consistent with and, in fact, inspired by Canadian human rights principles, and an instrument that we ratified only a year ago.

The question of compliance, I submit, must be considered in a context of change. To some extent, this is captured by the principle of progressive realization. But the context of change involves other aspects. It involves changes, possibly, in our legislation and, certainly, in our practices. Otherwise, we would have to conclude that we have already achieved “nirvana” for Canadians with disabilities. Would anyone seriously claim that? Or would anyone argue that we are a static society? For one thing, our technological progress creates new opportunities for access, inclusion and participation. And, unfortunately, if we are not vigilant, it also creates new barriers.

The idea of change is built right into the Convention itself. Let me mention here some specific examples:
Disability itself is understood “as an evolving concept” and it always occurs in interaction with the environment.
The relevance of technological change is recognized in article 4, where states parties have agreed “(g) To undertake or promote research and development of, and to promote the availability and use of new technologies, including information and communications technologies, mobility aids, devices and assistive technologies, suitable for persons with disabilities,”..

On the matter of mobility and transportation, I respectfully submit that it is not even minimally acceptable, let alone transportation nirvana, for a crown corporation to buy rejected European rollingstock and then bully and fight the disability community for years in the courts to impose inaccessibility. (Yes, this happened prior to ratification.) It behooves me, I think, to share with you that I was embarrassed recently to be questioned on this matter by an American friend. And while I am on the issue of US, Canada and transportation, let me share with you something, you will find, disturbing.
Catherine Frazee is a distinguished Canadian human rights activist, an academic with a disability and a former Chair of the Ontario Human Rights Commission. Approximately a year ago, Catherine decided to go to Vancouver from Nova Scotia where she resides. She was going to the “Vancouver Olympics to tell the hidden stories of disability in Canada with her art exhibit, Out From Under: Disability, History and Things to Remember.”
As Drew Penner, who reported the story, notes:
“Ironically, because of her wheelchair, VIA Rail can't accommodate her travel plans. So she'll be driving to Chicago, taking an Amtrak train to Seattle, and then driving to Vancouver.”

Now, juxtapose Catherine’s lived experience with the following:

“To that end we undertook the stupendous work, the Canadian Pacific Railway. Undeterred by the pessimistic views of our opponents –nay in spite of their strenuous, and even malignant opposition, we pushed forward that great enterprise through the wilds north of Lake Superior, across the western prairies, over the Rocky Mountains to the shores of the Pacific, with such inflexible resolution, that, in seven years after the assumption of office by present Administration, the dream of our public men was an accomplished fact, and I myself experienced the proud satisfaction of looking back from the steps of my car upon the Rocky Mountains fringing the eastern sky. The Canadian Pacific Railway now extends from ocean to ocean, opening up and developing the country at a marvellous rate,…”

Do you know who made this inspirational statement and when. It was Sir John A. MacDonald, addressing the Canadian people in the 19th century.

The question we need to answer over the next few years is: do we have the types and levels of disability supports programmes and services that our domestic legal framework entails?

The CRPD is a useful way of reviewing our programmes and answering the above question.

Let me emphasize that this question arises regardless of CRPD. For example, the In Unison framework signed by Canadian governments in 1998 speaks to this. It's something we have agreed on already in Canada officially and at a high level - first ministers.

Therefore, it would not suffice for us to say now: we are in compliance with CRPD, therefore, no substantial further action is required. Yes, we are in legal compliance, but that is exactly the reason why we need to adopt disability supports measures to become compliant with both our own domestic law and international law (CRPD) which this government ratified very recently.

I believe that this approach is very reasonable and consistent with the actions that have enabled us to make progress to this point. I am encouraged the Hon. Diane Finley, who is responsible for disability issues, is using similar language. For example, speaking on Nov. 25th, 2010, she said that:

“Our ratification of the United Nations convention on the Rights of Persons with Disabilities earlier this year demonstrates the government of Canada’s commitment to removing obstacles and to creating opportunities for people with disabilities.”
And she specified that: “With the ratification, Canada is committed to reviewing, on an ongoing basis, the situation of people with disabilities.”

Bridging the existing gap involves reviewing existing programmes, services, systems and practices, using both our domestic and international legal frameworks as lenses.
The CRPD, being a recently formulated document and being the result of collective contributions by both states parties and especially persons with disabilities, provides an excellent up-to-date guide by which we can take very specific steps.

3. Progressive Realization

Let me now say a couple of words about article 4.2, which addresses the issue of progressive realization.
The progressive realization principle means, in our view, that, while measures in relation to economic, social and cultural rights, are to be taken over time, progress must be made constantly. This provision is not to be read as a permanent postponement loophole. The article itself calls for “full realization”. This is another clear community expectation.

In support of the “constant progress” expectation, let me refer to two other provisions of the CRPD. First, in the purpose of the Convention, it is clearly agreed that “the purpose of the present Convention is to promote, protect and ensure the full and equal enjoyment of all human rights…” (emphasis added)
Further, Article 28 (adequate standard of living and social protection), a key article regarding economic and social rights, provides, among others, that:
“1. States parties recognize the right of persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing and housing, and to the continuous improvement of living conditions,”… I draw your attention here to the term “continuous”.

I think the above reviewed provisions of CRPD validate the expectation of persons with disabilities, including Canadians with disabilities, that socio-economic progress is imperative.

4. Conclusion

I am conscious of the fact that I have the honour of addressing today the Canadian public service. You are a critical factor in the success of the Governments of Canada’s effort in implementing the Convention on the Rights of Persons with Disabilities. You can make a great contribution, provided you work with ministers, with Parliament, with provinces and territories, with the disability community, and with the Canadian Human Rights Commission. We are surprised, by the way, not to see here today the Canadian Human Rights Commission among the invited panelists.

Let me refer to a testimony to your skills:

…”when senior officials give priority to large initiatives like the Economic Action Plan, public servants rise to the challenge. It shows not only that government is able to pull together and react quickly to urgent and unforeseen situations such as the global economic downturn, but also that it does a good job of managing the delivery of ongoing large and complex programs such as Employment Insurance and child and family benefits. Our positive findings speak to the effort that public servants put into ensuring that they serve Canadians well and look for ways to continuously improve.”

While I am happy to share them with you, the above words are not mine. They are the informed and considered and, may I add, highly respected opinion of the Auditor-General of Canada in her report “Matters of Special Importance”, 2010.

Finally, let me close by quoting Prime Minister Harper who stated on Sept. 21, 2010 speaking at the United Nations that:

“At this Summit, our discussions should be less about new agreements than accountability for existing ones. Less about lofty promises than real results.”

We agree wholeheartedly.

For Canadians with disabilities, accountability means full realization of the Convention.

Thank you