1980 to 82 Advocacy to Amend the Canadian Charter of Rights to Protect Disability Equality. David Lepofsky, Chair, Accessibility for Ontarians with Disabilities Act Alliance. Delivered at the Osgoode Hall Law School, January 22nd, 2014 as a Roy McMurtry Clinical Fellow.
>> Good morning everyone. It's a freezing cold January and it's 8:30 in the morning.

And we're here to talk about constitutional law. This is only your second class on constitutional law and on the Charter of Rights. So you see a document that was passed over 30 years ago, with a package of a whole bunch of rights. But what doesn't jump from you jump from the page when you read the charter is that, when that charter was first proposed in October of 1980.

All those rights were in there one way or another except for one. And that was equality for people with physical and mental disabilities. And it was due to a campaign by people with disabilities and organizations supporting them that led to an amendment during the battle over the patronization of our constitution that got that single right added in.

It is worthwhile to begin your study of the Charter of Rights by finding out how the one right that wasn't initially in got in. I had the privilege of being a participant in that campaign. Let me tell you about it. I want to explain at the very outset first that I'm here speaking in my personal capacity, not on behalf of the Ontario government where I work by day.

And second, to explain that I'm giving kind of, an oral personal memoir. There were many involved in this campaign. All contributed. I was but one. I'm not trying to exaggerate or over-inflate my contribution. I just want to tell you my story. I've had a lot of great experiences in my legal career, both my professional job and my community disability advocacy as a volunteer.

But there is no date in my entire 35 years since I left Osgood Hall Law School with my law degree that was more amazing and more surreal than the 10th of December, 1980. I had only graduated from here, but 18 months earlier. I'd finished my year articling. And back then we had a long, dreary, eight-month bar admission course.

I was in the middle of inhaling more coffee than you can imagine to get through it. I came home. I was living with my parents. I came home from a, a day out on a Wednesday. And the phone rang around 5 o'clock. I answered it. Hello. Is this the Canadian National Institute For The Blind, I was asked.

I said, who are you looking for? They said, is this the Canadian National Institute For The Blind? I said my names David Lapopski, is that who you're looking for? They said, this is the house of commons and we're calling, for the Canadian National Institute for the Blind. Somehow I got past this one and convinced them that I was the one they wanted to talk to.

It was the staff of the joint committee of the Senate and the House of Commons. Which was reviewing the proposed new Constitution for Canada, including the charter of rights. And they called to indicate that the CNIB had asked for a chance to make a presentation. We were invited to do so in 36 hours.

This was Wednesday at 5:00. We were slotted to present Friday morning. I was in Toronto, it was in Ottawa. Regaining my composure, I managed to convince them that I was actually in a position to speak for the CNIB. Because I was, in fact, their constitutional spokesperson. And with no authority whatsoever, I accepted the invitation.

I had no time to call the Executive Director, or the Chair of the Board of Directors, to be sure that they were prepared to do this. I just barreled ahead. Let me tell you about what happened over the next 36 hours. But let me first take you back a few months in time to unfold the story that led to that date.

In the 1970's, I went to law school here from '76 to '79. We didn't have a charter of rights. In constitutional law courses, we didn't study a charter of rights. We didn't talk about constitutional rights at all. We talked about which powers belong to the provincial government, which below to federal government, and that was about it.

Over that period, unbeknownst to this teenager. The Federal government had had ongoing dialog with the provinces over possibly bringing our Constitution home from the British Parliament, and adding a Charter of Rights. We didn't talk about it when I was in law school, in first year constitutional law. We didn't even think about it.

But during those discussions, to the extent there was any discussion of including an equality rights provision. There were, to my knowledge, no proposals on the table of including equality for people with physical or mental disabilities. It's hardly surprising because even though various provinces had human rights codes statutes that ban discrimination in employment and housing and goods and services.

On grounds like race, or religion, or sex. Disability was not included as an illegal ground of discrimination until starting in the late 70's and into the 80's. We weren't on the legal agenda. There was also no movement among people with disabilities. To advocate for a constitutional right to equality for people with disabilities.

We didn't talk about it. We didn't even think about it. Let me summarize my entire thought process on it before 1980. After I finished the first year of law school, I got a job to direct a project at the CNIB. Being blind myself and a law student, it was kind of an interesting challenge.

Called the Blindness Law Reform Project. We decided, I hired a number of law students. To work with me as a team and we reviewed different areas of law which we proposed needed to be reformed to protect the rights of blind people. Interestingly, when I looked at all of the proposals, all the chapters that all my colleagues had written, The title of our report came immediately, Vision and Equality.

Equality was the theme. One of the students working on our project was a young man named Bruno Cavion. Now, Mr. Justice, Bruno Cavion. He had done work for human rights commissions, and he proposed studying, writing a chapter on whether we should get disability included in all human rights codes.

He did his work, wrote a good chapter, I reviewed it, and one day I sat there with my colleague, now Mr. Justice Bruno Cavion. And I said, hey while we're proposing all of these reform amendments to include disability in human rights codes, what about proposing. This is the summer of 1977.

What about proposing that we also have a right to equality for people with disabilities in the constitution? He said something to the effect of, are you nuts? Like, who would ever even think of including a constitutional right to equality in the charter, much less putting us in it?

And, my friend, Bruno Cavillon was, of course, absolutely right at that point in time. Nobody would even think of it. That now, is the end of my research, my analysis and my thoughts on this subject during my entire stay in law school. Pretty in depth. Well, the prehistory of the charter battle doesn't relate to the charter at all.

It's actually quite interesting. In 1976, go back a year. The Ontario human rights code did not include a guarantee of equality for people with disabilities, at all. And the human rights commission released a report called life together, proposing that the code be amended. To include physical disability. It didn't even think about mental disability.

Man, have we come a long way since then. Over the new three years, from '76 to '79, the Ontario government studied it, i.e. did nothing. Then came 1979. A new labor administer was appointed named Dr. Robert Elgie. A phenomenal man passed away in the past year. Sorely missed.

An amazing guy. Lawyer and neurosurgeon. What a mix. Who went into politics because he couldn't get enough interesting done in law and neurosurgery. And he brought forward a bill to include a guarantee of human rights for people with disabilities, akin to the Human Rights Code, but not in the Human Rights Code, a separate law.

The disability community pulled a coalition together to fight it. Because they wanted our rights in the human rights code. The government quickly backed down and said all right, all right, all right, we won't do it in a separate law, we'll do it in the human rights code. Our coal, that coalition then began working on advocating for the specifics of what should be included.

In the guarantee of human rights to people with disabilities in the Ontario Human Rights Code. I was in 1980, in the spring of 1980, an articling student at a private firm. I heard about these activities and I decided to get involved. At the provincial level. And I soon became a member of the leadership team.

The committee that led the advocacy efforts negotiating the terms of the amendments we were seeking with Dr. Robert Elgey, the provincial labor minister. Time doesn't permit me to tell you about that amazing experience other than to say I learned a lot, about how to organize and do legislative lobbying.

But we weren't getting as far as we'd like, and we wanted to put pressure on the provincial government under conservative Premier Bill Davis and Labor Minister Robert Elgie. But we didn't want to be too critical. Because we didn't want to undermine Dr. Elgie who we thought was trying to get somewhere, for us.

So, how do you put pressure, how do you show that you can get media attention, without being too nasty. Well, along comes October of 1980. Prime Minister Pierre Trudot proposes a constitutional package, tables it with the parliament. It includes equality rights, section 15, but it doesn't include disability.

Moreover, the way it was initially worded. There was no way a court could amend, could interpret it to expand the grounds covered. It included an exhaustive list of the kinds of discrimination forbidden, race, religion, sex, age eh, national or ethnic origin to name some of them. But it did not include disability.

So the idea struck me, and others, that we should advocate, in Ottawa, to try to get The Charter of Rights amended before Parliament passed it. But we didn't have the slightest expectation that there was any hope of success. My main thinking, in 1980 in October, in raising this issue was that this would give us a stage to try to get national media attention.

Blasting the Trudeau Government, and Pierre Trudeau's then justice minister, a guy named Jean Chretien, who later went on to become the Prime Minister. And we could use as strong a language as we wished because we didn't have any hope of success. And it would be a way of signaling to Queen's Park that we're worth dealing with because we could really turn up the heat.

This chain of reasoning in retrospect is, a little amateurish. But that's what I was thinking. So, I decided personally that I thought this was a fight worth fighting, as did other folks at various parts of the country, but we didn't do it together. We did it separately. Let me finish the prehistory by setting the political stage in the fall of 1980, and then I'm going to leap right into what happened.

Back then, there was no internet. There was no email. There were no fax machines. There was certainly no social media. There were no word processors. In fact, there were no personal desktop or laptop computers at all. If you wanted to write a letter to your politician or prepare a press release, you typed it on a thing called a typewriter.

I wrote my law exams on those. My first one, partway through, I found out the ribbon broke and my brilliant answers were all on blank paper.
>> I got an A, it was criminal law.
>> [LAUGH]
>> I did manage to type stuff after I found out I was typing blank paper, they don't usually give A's for blank paper.

At least they didn't back then. I'm sure they don't know. In any event, I I we didn't have Skype and a chance to have telephone or video conference calls. If you wanted to write a letter personally addressed to each member of the legislature or parliament or a committee it had to be retyped over and over and over again.

And if you made a typo you either had to use this odd stuff called White-Out or just start all over again. And if you sent a letter or a a press release, you put it in something called snail mail. So, things took days to happen. The idea now that we write a press release, email it, post it online.

And you know, ten minutes later if it's a big enough story, you, you might see an online article in the newspaper. Not ten minutes. But within an hour or two a story an online story in the newspaper. No, nothing like that. This was the stone age of community organizing.

So and, and I, in terms of my own personal world, cuz this is a memoir. I had not studies the human rights code. I had learned nothing about constitutional rights of to equality when I was at Osgood. I didn't know anything about this stuff. And I had no personal training in how to do community organizing or how to present to a committee of the Legislature or the Parliament.

We didn't learn how to do that when I was in law school. Part of my agenda while I'm here for a month is to try to find ways to add that to the legal educational curriculum. But on top of that, we did not have a culture in the late 70's or 1980 of community organizing and advocacy.

Many of the disability agencies, non-profit charitable organizations do fabulous work. But giving hard-hitting press conference wasn't the kind of thing they typically did to blast the government over a proposed piece of legislation. Moreover the Trudeau constitutional package was highly controversial. And so wading into that highly controversial thing was certainly not something that organizations which are not that politically active as legislative advocacy we normally want to jump into.

Never the less I, for my part, decided I wanted to be one of the people acting. So what did I do? I talked to some of my colleagues with whom I was doing active in the coalition to advocate for human rights reforms in Ontario. And I didn't get any uptake.

Not that people disagreed, people were just really stretched and really busy. And battling at Queens Park over the human rights code was more than enough to fit in to overloaded schedules. Moreover, some of these organizations, non-profit charitables, were facing some of the dilemmas that pulled Canada apart. You see, Trudeau tried to get the provinces to agree to a reform, Constitutional reform package.

Couldn't get them to agree, so he decided to propose a unilateral amendment to the Constitution, the Federal government would go it alone. Ontario supported him. New Brunswick supported him. A number of the other provinces didn't, especially Quebec, and the West. And I got word back that some national disability organization or other was itself divided.

Some of their western representatives, they didn't want to support this constitutional package. Because they didn't agree with what Trudeau was doing, period. So there was the, the same politics that was yanking Canada to the, to the edge of its nerves. Was bullied within the community itself. I don't know how much.

I just know what people told me. So my own personal decision was for my part to get involved. Time was short. So what's the easiest way to do this? And when I say time was short, Trudeau had brought the bill forward. He had scheduled a short period of public hearings in Ottawa, and then planned to ram the package through.

So there wasn't a lot of time, for, for, for strategizing. So I went to the CNIB and I said, why don't you appoint me your constitutional spokesperson? And why don't we pitch for this amendment? And I got their permission to do so. But it wasn't just one meeting.

I actually had to write a resolution. I, the CNIB has a national board and at the time it had provincial boards. I was on the provincial board. It's a non-profit charitable. And I was the chair of a committee of that board called the public education and advocacy committee.

So I wrote a resolution. You gotta get a load of this. Of my committee, calling on the Ontario Board. To call on the Canadian Board, the National board, to advocate for this a constitution to include disability in the charter and if memory serves to appoint me to lead the activity as a volunteer.

And it got through my committee and then I had to go to the Ontario Board and then we got it through the National Board and then I got my appointment. Pay was zero, it was a volunteer activity. So then what do you do? Well, I did two things.

We had to write a brief to submit to the government and ask for a chance to appear before the standing committee. Knowing full well that there was absolutely no chance we'd get a chance to appear before that committee. There were a lot of people that wanted to appear.

There were on tight timelines. The line up was big and we weren't the first in line. Well I'd never written a legislative brief. So I called up the standing committee staff and I said what should I do. And I remember one of the staffers, I have no idea who it was Said that they have a pile of briefs from floor to ceiling, make it short.

I will tell you that many who've received briefs that I've written insisted would wish that I continue to listen to that advice. Members of my coalition say only Lapovsky, my nickname at law school, was Verbovsky, Could prepare a 100 page document and call it a brief. But in any event, it was a couple of pages long and we made our pitch.

And we sent it in, in a hurry. The second thing for our part that I decided CNIB should do is to reach out to the media. There was all this coverage of constitutional reform. Let's get into the story. Now the, we have two problems. One I knew, and one I learned.

The one I knew was that most of the public debate grabbing the headlines week after week and day after day, was not about the content of the charter. Should we include freedom of expression? Is the principles of fundamental justice the way to include, to frame procedural rights? Well, what kind of rights should a criminally accused person have?

Should we exclude evidence if it's unconstitutionally obtained? That wasn't being debated. In legal circles, there were some debates. Over should judges have the final say? Should we leave this to legislatures? Is this an appropriate thing to do? But the overall public debate was should Trudeau be allowed to go it alone.

Is it acceptable for the federal government, with only the support of two provinces, to amend the constitution? That was what was getting the headlines. And the critics said oh you're just trying to maintain your legacy in history. And the supporters said no we need the charter rights. And, anyway there is also of course a huge debate over how the amending formula should work.

Because once the constitution came here from from from England. We'd have to have a formula for figuring out how to amend it from then on and that was and still remains a hugely controversial subject. So that was, it was predictable that it was going to be hard to get coverage on our issue when nobody was talking about the contents of the charter.

Here's what I didn't know. I didn't know anything about how to craft new stories. I'd gotten some in the past. Let me tell you about my first phone call. I won't mention the news organization, but their initials were CTV. Phone rings. News. Hi, my name's David Lepofsky, I'm the offical constitutional spokesman, brackets, whatever the heck that is, close, brackets, of the Canadian National Institute of the Blind, and we have a new story for you.

What's that, says the, call taker. Always in a busy and hurried cuz it's an assignment desk. We wanna argue, we're now officially contesting the charter of rights because it does not include equal equality for people with disabilities. From the CTV reporter, I am asked, well, is there anything visual about this story Visual?

It's the Canadian National Institute for the guess what? Blind. I had not yet learned that the media don't cover issues, the media cover events. And what I was calling about was an issue and I was later to learn over and over again in doing my community advocacy, that a news story just, we don't like what the government's doing, sometimes can get coverage, but often won't.

But we didn't get much if any coverage at all. So what do you do next? The next weeks unfold, we tried writing letters but an opportunity came up that we frank, that I frankly hadn't expected and part of doing advocacy is grab every opportunity you can. You see 1981, the next year, had been declared by the United Nations to be the International Year Of The Disabled Person, IYDP.

And it's theme was full of participation and equality. And Canada had cosponsored the U.N. resolution. So declaring that year. So our government had decided in 1980, in anticipation of the next year being the International Year of People of Disabled Person. To appoint a committee of parliament, chaired by then back bencher liberal member of parliament, now senator David Smith.

To look into the status of people with disabilities across Canada. It held hearings and various groups made presentations. One of which was in the Fall of 1980, that the Constitution should, the Charter of Rights should be amended to include equality in Section 15. The equality rights provision. Of the many deponents that appeared, I had the opportunity of doing, being one of them.

Not for CNIB but of interest for the Canadian Jewish Congress. The Canadian Jewish Congress decided to make a deposition. Professor Fred Zemans of this law school was heading up that proposal. He called and said could you help. I said, sure. Off we went to Ottawa, and one of our pitches to David Smith was please include equality in section 15.

Again, one of many, many, many deponents. That committee ended up passing a resolution. It was an interesting one, because they had liberals, conservatives, and DP, and the conservatives and DP were against the unilateral patriation. So what they did is they came with a compromise resolution, it said, look, we're not saying if there should be a charter, but if there is one, you should amend it to include equality for people with disabilities.

So that dynamic was going on in the Fall of 1980. Then comes the phone call. Wednesday the 10th at 5 o'clock. Oh my god. After I take the phone call, accept the invitation, put the phone down, immediately walk upstairs, lie down in bed, look at the ceiling and go what do I do now?

I called the CNIB Vice President, got the green light that what I accepted was actually okay. They put a call out to the executive director who was in BC to get him on a plane, from BC back to Toronto. He was literally flying the entire time from that call until I walked into the hearing.

And then I had to prepare what we were going to say. This is an amazing story, but we didn't have laptop computers and opportunity for online research. I did two things. I called a friend of mine who was then a new friend of mine. Just met him recently, named Mark Gold, who was a professor of law here, went on to be associate dean, had written his master's the year before at Harvard on equality, and I said, get me your master's.

I fired it over to CNIB, they got someone to read it on tape. This is all by taxi. They read it on tape, we didn't have audio books. The taxis were coming to my house with tapes by the hour, so I could be reading his master's thesis. And meanwhile, I also realized that I had to figure out what, if, if we're complaining, we've got to tell them what we're complaining about.

I need examples of laws that violate the equality of people with disabilities. Well fortunately the year before when I was articling, we had just been exposed to this newfangled technology called QuickLaw. Online legal research. By the way back then they didn't even have full cases only head notes and we thought wow!

I can read case summaries and online and search on terms. Well, the problem with doing QuickLaw research it had all the legislation on it. But nobody had QuickLaw wired into your office. Remember I was working at a law firm at this point anyway, but back then it was so new that if you wanted it in your office they had to lay in special cabling and equipment or else you had to go to the offices of QuickLaw.

So 5:30 or 6:00 at night that Wednesday I got the phone number for a QuickLaw on Queen Street around Bay. Whoever answered, nice young woman, I said, I hope you're not leaving yet. I have a problem. And I said, I, I'm a law student, I'm blind, I'm, speaking for the CNIB, and we've gotta go in 36 hours and tell the House of Commons and the Senate about laws that violate our rights.

And you folks have the way to find out. And I can't get down there to, to do the research because I got to go to Ottawa tomorrow. Can you do the research online for me? By the way I have no money. I said if you want to bill CNIB go ahead.

Make my day. I don't believe they ever did. So I start, you can telling her search terms handicap which we use to use back then, disabled, also, you name it. She is reading results and I have a tape recording running next to me and I am dictating what she's saying.

Disabled vehicle, highway traffic, a, no, no, no, no, no, doesn't really help. I mean, whenever it came up, she was reading them to me, and I was dictating them out loud. That alone would be surreal enough.
>> [LAUGH]
>> But it's, there was more, cuz you see, a day or two before, beloved Beatle, John Lennon, had been gunned down in New York City.

The world was mourning, we all were mourning. And thousands of people had just converged to express their love for him across the street from QuickLaw, at Nathan Phillips Square in Toronto. Right in front of City Hall. And the thousands of people were singing aloud. All we are saying is give peace a chance.

Imagine, all these great, visionary Beatles songs are being sung by thousands, and I'm hearing in the background, is I'm hearing, well, there's highway traffic act, disabled vehicle And I'm not exactly in the position to say, can you tell them to shut up, I'm trying to get my research done.

Anyway I was with them. It was grieving too. So I got these ideas together, and the next morning I'm, the tapes are coming and the cabs are coming and I get eventually later in the day. I get in a cab to go to the airport to fly to Ottawa.

I had no idea who's even gonna play, pay for the airline ticket. Did I know that Parliament pays for these things? They put us up in the shuttle area, hotel. I said, can I order food?
>> [LAUGH]
>> I mean, what do I know from expense accounts? And up till late at night, I'm writing my notes, and the next morning, I walk in to make the presentation.

It's the 12th of December, 1980. Anyone else would be excited. I was, I felt terribly guilty. Why? It was my mother's birthday, and here I was, away from home. Anyway, I make the pitch, I'm pleased to tell you that these were the first hearings before any committee of Parliament that were ever broadcast on television live.

And I'm pleased to tell you that because they were also video-recorded on something called videotape and I got a copy of that videotape. And I later digitized it and it's now on YouTube, so you can watch it. I will tell you that the dominant thing that you will experience by watching it is: A),I had hair back then.

Lots of it. And B, my voice sounds higher. I'm convinced it was the recording. Let me summarize what I had to say. In, a, and this is an argument. Welcome to your careers. The most amazing opportunities may involve zero prep time. And all you can draw on is the resources that you get here at law school.

So, pay attention. From now till you graduate, it all helps. The pitch we basically made, and I was one of three different opponents who came from the disability community on different days to present. But the pitch we basically made was this. Number one, people with disabilities face discrimination.

Number two, it includes discrimination in legislation. Number three, that's not fair. We tried to also respond to the arguments that we had heard in the public arena up til then. We were told, oh it's good enough if we're in human rights, if disabilities are included in human rights codes.

The answer is no. Well, for one thing Ontario didn't even have disabilities in the human rights code, we were still fighting for it and had been for years. Or had been on the agenda I should say for years. But also the charter was needed so that we could challenge legislation, as well as government action.

Drawing on the information I got from QuickLaw over the phone while listening to Geor, John Lennon songs, I gave examples. When I re-read that transcript. And I see those examples, I can still see me like lying in a bed in my bedroom. What else have you got? Let's look at Nova Scotia legislation try there.

Maybe we'll find something better and so on. But in any event. The other argument that we made was this. The way the equality provision was worded. It didn't guarantee equality for all. It just said equality without discrimination based on certain deemed grounds. And we said look. Equality for some, means equality for none.

We knew the argument was being raised against us disability might be to hard to define and we said. I'm paraphrasing, but like, give me a break. The charter's full of vague terms, freedom of expression, freedom of religion, fundamental justice. None of them are going to be in a dictionary.

That's what constitutions are about. And finally, we knew that lurking out there was the boogeyman of what would it cost. And our answer was, nobody's costing all the other charter rights. Noon'es coming in and saying, well, what will, will fair trial rights cost? Well we can't afford that one, so let's just get rid of that.

Equality for people from racialized communities, we could afford that one, but gender no, no too expensive. So why are you holding that one up against us? Anyway it was a and if you read the lead, or watch the lead in my presentation. The first thing I did was to use the line when the argument we used whenever we do any advocacy on, on these kind of issues.

We said, you know, the biggest problem you think we face is our disability. But it isn't. The biggest problem we face is the, the impediments people put in our way. And that idea is probably more well known now than it was in the 70's, but it was so important that we had to lead with it.

So, what happened after that? We do the presentation, they ask me some questions, which is somewhat entertaining to watch. And I flew home and felt guilty about missing half of my mother's birthday. And after that comes the next phase of the battle. The community. Other presentations were made.

The two other major disability ones were by two organizations that still exist but they changed their names. The Canadian Association for the Mentally Retarded, now called Community Living, Canadian Association for Community Living. And a coalition of provincial organizations of the handicapped now called Council Canadians with Disabilities. Leading players, none of us called each other to compare notes.

Meanwhile in the back rooms, I was to learn later David Smith was lobbying his caucus one member at a time. To try to get the Disability Amendment through. We added to our argument the fact that it would be a cruel irony, if the charter was patriated and enacted in 1981.

The international year of the disabled person. Canada co-sponsoring that resolution in the UN. The theme being equality. And we leave equality for people with disabilities out of our own constitution. after, and, and the other thing that we did was we tried to use I and many others as many opportunities to put the pressure on as possible.

I heard that a couple of cabinet ministers were speaking at my particular synagog. I went down there and popped up with a question. A cab, a different Cabinet Minister was on Cross Country Checkup on CBC. I was reading real estate for the Bar admission course with one ear holding the phone in the other ear and dialing and dialing.

Others were doing the same thing. And then came the 12th of January 1982. After all the hearings are over the way the legislative process works is the government reviews all the feedback. And comes forward and the justice minister comes before the committee and basically says here's what here's what I'm prepared to do and then takes questions.

Now in a moment I'm gonna have Professor Pyg read out what Jean Chretien said and then how he answered a question, a series of questions, from Lauren Nystrom, an NDP position member. But let me just explain what he did. There were two main groups who were asking to be added to section 15.

And everybody was saying strengthen the actual way it described equality. I won't go into the wording on how to strengthen equality, but Justice Minister Chretien agreed to that proposal to strengthen those words. The two groups that wanted in, this is fascinating in hindsight, were people with disabilities and gays and lesbians.

And back in 1980 and '81 the idea of including gays and lesbians in human rights protection was politically a huge uphill battle. We've come a long way since then. I'm talking about in terms of even political acceptability in the community. Much less actually getting it through the legislature.

And I remember when I was at this law school. A classmate who was a lead activist in the, in the gay rights community. We talked about the different battles we, we were each battling for, for the same thing. Well what the federal federal government decided to do. And you'll, you'll hear this passage in a moment.

But what they decided to do was, they were gonna open end section15. They were gonna open up the, they weren't gonna add any new grounds of discrimination. They wouldn't put sexual or disability in. But what, they would expand the wording so it would say equality without discrimination, and in particular, without discrimination based on race and national ethnic origin and so on.

So that the courts could add grounds. When Justice Minister Chretien was called upon to answer and you'll hear the quotation in a moment. Why not include disability? He said handicap, cuz that was the term we all used, of course we don't use it now. The terminology changes every 20 minutes in this area.

Not every 20 minutes, but every few years. But what happened was he said, contradictorily. We don't want to include it because we don't know how to define disability. We don't think equality for people with disabilities have matured enough, we think human rights codes are the way to go and any way it's opened up so you can get in there by the courts.

And so our, to which the obvious reaction is, look, if we're not ready for it. Why are you giving us the chance to get in and if you think we should get in because you're opening it up, why not just put it in so we don't have to go to, all through, all sorts of court proceedings to get there.

So Richard could you just read the two passages.
>> Sure. The, the statement from Chretien?
>> Yeah. There's first there's the passage that he said before the committee. And then after that is the passage that in exchange with Lauren Nightstrum.
>> So I have, you know, I wish I could do a Chretien accent, but I can't.


>> [LAUGH]
>> Equality rights. There has been much discussion of the non-discrimination provisions of the charter, as found in section 15. I want to deal with this in some detail. First, I want to state that I agree with the proposal made by the advisory council on the status of women and the National Association of Women in the Law.

That the section be entitled Equality Rights, so as to stress the positive nature of this important part of the charter of rights. I want to take this opportunity, to congratulate all of the witnesses who testified on this section. I want to specifically to complement the Advisory Council on the Status of Women for a particularly fine brief.

As well as for an impressive presentation before you. The work of the council has greatly influenced the government, as have the presentations of the many witnesses who have spoken on this subject on behalf of women's groups, the handicapped and others. A provision on equality rights must demonstrate that there is a positive principle of equality, in the general sense.

And, in addition, a right to laws which assure equal protection and equal benefits without discrimination. To ensure the foregoing and that equality relates to the substance as well as the administration of the law. I would be prepared to accept an amendment to section 15-1, so that it would read as follows.

Every individual is equal before and under the law, and has the right to the equal protection and equal benefit of the law, without discrimination. And in particular without discrimination based on race, national or ethnic origin, color, religion, sex or age, period. I know that many witnesses have recommended either that the grounds for nondiscrimination be widened to include handicap persons or others.

Or that there be no specific enumeration and that more discretion be left in the hands of the courts. The government has studied these representations with great care. The position of the government is that certain grounds of discrimination have long been recognized as prohibited, race national or ethnic origin, color, religion and sex, are all found in the Canadian Bill of Rights, and are capable of more ready definition than others.

I want to make clear that the listing of specific grounds where discrimination is most prohibited, does not mean that there are not other grounds where discrimination is prohibited. Indeed as society evolves, values change and new grounds to discrimination become apparent. These should be left to be protected by ordinary human rights legislation, where they can be defined.

The qualifications spelled out in the measures for protective action specified by legislatures. For example, it was only four years ago that federal human rights legislation specifically provided protection for the handicapped in the area of employment. Recently the Special Parliamentary Task Force on the Handicap, chaired by David Smith, has recommended changes and, and improvements in the Human Rights Act, with respect to the handicapped.

The government will be acting on some of the recommendations of the task force. The government is also proposing to act on some of the recommendations made by the Cana, Canadian Human Rights Commission in this area, and will propose amendments to the Human Rights Act. But if legislatures do not act, there should be room for the courts to move in.

Therefore, the amendment which I mentioned does not list certain grounds of discrimination to the exclusion of all others. Rather, it's open ended and meets the recommendations made by many witnesses before your committee. Because of the difficulty of identifying legitimate new grounds of discrimination, in a rapidly evolving area of the law, I prefer to be open ended rather than adding some new categories with the risk of excluding others.

That's the end of that statement.
>> And then later is when.
>> Do you have the passage there where Lauren Nistrom is questioning you?
>> No, he didn't give me.
>> Oh, it didn't show up in the email. Must've wiped that. Anyway, what happened, I'll summarize it, is he's asked, like, why not add it now?

And he said, well it hasn't matured. Or and, and he said it's hard to define. The same kinda arguments. Hard to define. And better dealt with in human rights codes. So let me tell you what happened with me, cuz this is actually quite amazing. In terms of just serendipity.

I was sitting at home studying for, yes, another bar exam, and the TV was running in my bedroom, and this was on. And it was the evening. I saw this answer and I was understandably appalled. So I walked over to the telephone and I called the Globe and Mail.

Fortunately it was before deadline cause it's a morning paper. And I said, I got the assignment desk and I said this is David Lepofsky the official constitutional spokes person for the Canadian National Institute for the Blind. Brackets whatever that is those brackets fortunate at this point in time I didn't have the same amount of media coverage I've had since then on accessibility issues and nobody knew who I was.

I'm not saying everybody does now most most don't but a few do and I've done enough interviews that some people go yeah him. But back then they didn't know, and fortunately, he could of called, hung up and said, you know, call me, call back tomorrow, we want to check to see if you're for real.

Whoever the reporter was kept listening. I said, Mr. Chretien has just said he is leaving people with disabilities out in the cold, he's out of touch with reality. You know, we are really, and I, and I made my pitch. He essentially, I guess, told me to talk slower, I started describing what was going on, slowly, and I heard his typewriter typing.

The story ran the next day. It, we couldn't have been luckier. See, at this point the Trudeau package was so controversial and Trudeau's main strategy was he can't get the Premiers to agree so he's trying to appeal to the public over the heads of the Premiers. So, any story about this kind of thing had a lot of potential if it got into the news.

But we had a lot of trouble getting news. The next day after this. That was the 12th, I guess it was the 13th of January, the Globe and Mail ran, and it quoted, if memory serves, it didn't include just an article, but either large quotes, or the entire key parts of the statement.

And sidebar to it was my article. And Richard you got it there can you just read it out?
>> I can read this is, so this is the Globe and Mail, January 13th, 1981. Headline, Disabled Out in the Cold, Spokesman at CNIB says. And the text reads, the liberal government's refusal to expand equality rights to include the handicapped.

Makes a mockery of Canada's participation in the International Year of the Disabled, a spokesman for the Canadian National Institute for the Blind says. Rather than moving to protect the handicapped, Ottawa has decided to let discriminatory laws remain on the books, said David Lupofsky, a CNIB director. Who appeared before the Parliament Entry Committee on the Constitution last month.

Mr. Lupofsky said that Justice Minister Jean Chrétien's remarks in making the announcement, quote, have absolutely no relation to reality. He's saying that the term handicap is too vague, and that no one will know what it means. That's absolutely ridiculous. It's very clear what we're talking about. Endquote. Mr. Lepof, Mr. Lepofsky also criticized Mr. Chretien for suggesting that entrenched protection for the physically and mentally disabled would only duplicate existing human rights legislation.

On the contrary he said, much of the current legislation is concerned only with discrimination in the workplace, or in rental agreements. Quote, those provincial statutes don't address themselves to all the other provincial and federal laws which discriminate against the handicapped, Mr. Lepofsky said. He cited laws which prohibit blind people from sitting on juries in some provinces.

Denying minimum wages, minimum wage protection to some handicap people and forbid some mentally handicap couples from marrying.
>> That's
>> So, I mean, serendipity. When I got the call on the Wednesday, the 10th of December, I asked if there was any way in to go and do this hearing.

I was obviously in shock, and I said, look, is there any you could do it, I, I could do it next week or something? And they said, basically, take it or leave it. If I'd had a bar exam that Friday rather than the following Friday, I wouldn't have been able to go.

If I had been watching a different tv program on the 12th rather than watching Justice Minister Chretien's statement, or if they hadn't carried it live, this article wouldn't have run. I'm not saying this is all decisive in anything in the campaign. It was decisive only in the sense that It was, it was a decisive part of my contribution, whatever that contribution may be.

anyway, the next days led to the big change. A few days after this, during debates in the Standing Committee, a liberal member, I believe it was on the 16th of January, a liberal member of the Standing Committee I asked Justice Minister Kushti if they might reconsider the disability amendment in light of the fact that this is the international year for people with disabilities.

And he said he would. Then comes the 26th of January. Back up a bit. The year before, I articled for a private firm, and one of the lawyers there who I did a little bit of work with and met very briefly was a man named Eddie Goldenberg. And he, Goldenberg went onto become, when, when, when he, when Chretien got elected reelected or, excuse me, became Justice Minister, became one of his policy advisers.

When I appeared before Standing Committee on the 12th of December, 1980, after I was done speaking and I'm walking out. He came up and said, David it's Eddie Goldenberg, I'm working for, for Justice Mister, Chretien and I said we should talk. Foolish me, I should've like talked right then or called him the next day.

One the morning of the 26th I decided to call him up. I called the office, somehow I got through, and I said, let me give you the 28 reasons why you really should. He said we're gonna do it. But you gotta listen to me, you really got. He said, we're gonna do it.

And later that, so I, I floated for the rest of the day. It wasn't public. And later that day David Cromby, conservative member of the legislature for parliament. Former member, mayor of this city. Put forward the amendment it passed, and the rest is history. Interestingly as with many events in our campaign for accessibility over the years.

That amendment got to memory very little, attention in the media. There is one little PS to this story, and I wanna wrap up by telling you a bit about the consequences. the, in the spring, The package finished going through Parliament. And then, the well known history unfolded where the opposition forced Prime Minister Trudeau to refer to the Supreme Court of Canada to the question of whether he could amend the Constitution without all the provinces or most of the provinces agreeing.

The supreme court of Canada rendered its decision in the fall. Negotiations began were undertaken between the governments. A key player was Roy McMurtry, a trained general from Ontario and after whom my fellowship is named and an amazing fellow. And one of the proposals that came out was that they that was the basis of a deal to get more provinces on site.

All provinces except Quebec was to include in the charter section 33. It's the section that provides that the parliamentary legislature can actually pass a law that violates some of the charter rights. Not all of them, but some of them. If it includes a clause in that law that says this law operates notwithstanding the Canadian Charter of Rights and Freedoms, and that, that lasts for five years and then expires.

They've gotta reenact it. So, when this hit, the, the proposal of the power of legislature of Parliament to override the, the charter various equality seeking groups went into action to try to oppose it. Principally, aboriginal groups and women's groups. And from my part I was off doing graduate work in the States.

I was doing my masters of law at Harvard. And I was able to get through to CBC and give an interview in the morning one day. On one of the call-in shows long distance, just to make our pitch saying equality rights shouldn't be subject to legislative override but not withstanding clause of Section 33.

Well obviously, those who oppose that lost. It got included cuz it was the basis of the deal and here we are. Let me conclude with some observations. First, in your legal careers, you will never know when serendipity will strike. I can't say be ready cuz there's no were, way to prepare other than to take your law school training as seriously as you can.

Because over those 36 hours all I had on my side were my wits, my law school training, and taxis showing up every hour with tapes. Oh and a phone call to QuickLaw with John Lennon in the background. These opportunities it, it it's odd that in a, in a career that I continue to enjoy and that's been wonderful, that one of the most decisive moments in my career came before I was even called to the bar.

And just months after I finished studying here. You never know what will happen, you've just got to put yourself in a position. Working with community groups and causes that matter to you, to be watching for one, and to seize the opportunity when it arises. When I was at, I was interviewed the morning after the constitution amendment was passed on CBC Radio.

And I was asked what I thought the significance of the amendment was, and, and I don't have a transcript of that interview, I haven't', I don't even have a recording, and it's been a long time since I heard it, but I remember it. And I said look, one of the things we want is obviously this new right, which is sub stand of and important, but we also want something that was symbolic.

The message is now clear to people with disabilities and to all Canadians that we're equals too. And since them some laws have been struck down and some government actions changed, I'd say not enough. But a discussion about equality in a law school, at a law conference, in any other venue would be incomplete, if not inconceivable, without disability being on the agenda.

That traces itself back to what so many of us fought for, and through the efforts of so many. Working on our own, not together, without email, we managed to achieve. One of the most interesting things unforeseen back then is that the victory that day that, when the constitutional, when the disability amendment was passed.

And the similar victory around the same time when the Ontario, of June of, of 1982, when the Ontario legislature, under the able leadership of Dr. Robert Elgie, finally amended the Human Rights Code to include, physical and mental disability. Those two huge strides forward underpin the past 20 years effort in which I've had a privilege to take part fighting for Ontario's new accessibility legislation.

Other lectures in this series will talk about the history of that campaign. What we've achieved, and what I've learned about doing community organizing and community advocacy. But suffice it for the present to say that the rights which the Accessibility for Ontarian's with Disabilities Act 2005, and its predecessor, the Ontarian's with Disability Acts 2001.

For which the disability community organized and fought for a decade. The rights those laws seek to implement are not new rights. They're the very rights that the charter and the human rights code gave us in 1982. They're rights we don't see realized sufficiently because we have to litigate one barrier at a time, one case at a time to win their implementation.

The Disability Act is supposed to relieve of much of the burden of litigating barriers individually, one at a time. So the win back in if, if, if I was to go back and give that CBC interview again the morning after we won it. I'd say really there were three basis of the vic, three consequences.

The first, obviously an important new constitutional right. The second, a message to people with disabilities and our broader community that were equal. And third the underpinnings of ten years of advocacy from '94 to 2005 and another eight years in coming advocacy under new legislation after that to make those rights a reality.

Let me conclude with a line that I first used the day I appeared before the constitution committee. On December 12th, 1980. I came up with it walking home one day from the subway, thinking, if we ever got invited to appear, what would I say? Thinking it unrealistic we'd ever get invited to appear.

And I've used it many times since. I said, I paraphrase, to the standing committee. It is often said that justice is blind. It's an aphorism, it's a goal to which we aspire. But if justice has had the opportunity to experience blindness, then equality demands that blind people and all people with disabilities, equally have the opportunity to experience justice.

Thank you very much.