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How to make Bill 59 Work

The list of Bill 59's flaws is lengthy.  Here are 6 things that need to be done to make it effective:

  1. Be clear that it's about equality, not disability
  2. Name the problem - discrimination, not "issues"
  3. Name the Scope
    1. Employment
    2. Public Facilities and Services
    3. Private Facilities and Services
    4. Communication and Technology
    5. Transportation
  4. Find a credible home for standards development
    1. Justice or perhaps the Utility and Review Board
    2. Give them 9 months to issue minimum standards in the named areas, update frequently
  5. Commit to incentives
    1. Provincial and Municipal Accessibility Tax Credits, possibility of syndication, grants
    2. Meaningful penalties
  6. Continually document the economics
    1. Jobs created
    2. Increased valuations
    3. New revenues
    4. Supports eliminated
Here are some real-world problems it needs to fix.
Here is the outlines of a bill that would work.  It has roughly the structure of Bill 59.

Homework for the Law Amendments Committee

Dear Committee,

I was relieved to learn that you have paused the progress of Bill 59. When I initially wrote, I feared that you would continue the juggernaut to pass the Bill and that you were unlikely to incorporate changes. You did the right thing.

Last year, I was honoured to receive an award from the Human Rights Commission for work advocating for people with disabilities. That work and my personal experience have given me a profound sense of the artificial and arbitrary barriers society constructs.

What follows may be hard for you to hear, but successive governments have been extremely tough on people with disabilities. There is a pattern of enacting good and decent laws, but when it comes to people with disabilities exceptions are made and justice is forgotten. For example, public transportation is a good thing, but you couldn't figure out a way to do it equitably, so you invented an inferior version for people with disabilities and hope no one notices. Minimum wage is good for most people, but apparently not for people with intellectual disabilities.

Generally speaking, people with disabilities are too busy dealing with the inequities (and iniquities) visited upon them to organize effectively. The Disabled Persons Commission is the voice of government, not of people with disabilities; the objective of condition-specific organizations like Autism NS is very particular; people are often isolated and don't have a lot in common. Although you will often hear the saying "Nothing about us without us" it can be hard to get at the "Something for us, by us".

You will hear a lot about the structure and process of the Act. It needs:

  • Enforceable standards
    • not subject to loathsome cost/benefit analysis (who among us would pass such a test?),
    • drawn liberally from the many hundreds of successful examples in other jurisdictions,
    • seldom requiring a Nova Scotia version
  • administered impartially
  • enforced with purpose
  • supported by incentives and penalties
  • all in a timely fashion

Sounds easy, but how will we know it will work?

We want this legislation to solve real problems, not to be mere window dressing. Good legislation is not conceived in a vacuum. Here are four serious, longstanding and difficult problems that should be addressed by the legislation. The Act should open the door for a solution. You can't just wave a magic wand to make workplaces accessible, but you can create the tools to make it happen. This list is not exhaustive, but illustrates the complex nature of the problem.

Employment. Employers are now allowed to discriminate against people with disabilities by perpetuating physical and process barriers. Not one of the hundreds of unemployed Nova Scotians using a wheelchair could get a sales clerk job at Jennifer's on Spring Garden, nor could they work at the upstairs offices of the Waterfront Development Corporation. Why is that permitted?

The Building Code and its cognates are the de facto Charter of Rights for people with disabilities. Who says rights disappear when a building is under 120 square meters? What has a "change of use" got to do with the right of access? Why are disabled veterans prevented from visiting part of the museum at Maritime Command? Is there really a good reason voters with wheelchairs can't use the front door at the House of Assembly? These arbitrary rules don’t belong anywhere near the Building Code, which should be strictly concerned with standards of construction.

Clearly these rules are designed to protect owners and operators from accessibility requirements, simply to save money. These rules don't reflect our values. The expense can be significant, but to protect the rights of all citizens, government has to be on the side of access, not the side of barriers.

  • Government must get creative with tax credits, syndication and timing thereof, and other incentives. Those general principles can be enumerated in the Act.
  • You need to do the math to demonstrate to yourselves that employment is a far better and more fiscally sound alternative to government support.
  • The Building Code cannot be allowed to determine Charter Rights.
Nova Scotia is constantly lamenting the shrinking workforce and declining population, yet here is a significant demographic that is ignored and wasted. We go to great lengths to educate people with disabilities, but we won't give them jobs. How smart is that? "Inclusive" and "Diverse" aren't just nice words - they make economic sense as well.

Transportation. Hand-in-hand with employment discrimination goes a discriminatory transportation system. You yourselves saw the effect of that when people wishing to comment in person were unable to do so on short notice due to the vicissitudes of the separate and unequal Access-a-Bus system. By its very nature it makes people with disabilities second-class citizens. A modern job requires long hours and considerable flexibility. How can that be scheduled a week in advance?

Health. What is the difference between a new hip and a new wheelchair? A cataract operation and a Braille note taker? Hips and knees liberate people just like wheelchairs and service animals do, yet people with disabilities have to crowdfund or rely on charity for this basic need. The Department of the Environment makes an exception to Public Health Regulations requiring a convenient washroom in restaurants. Even commonly accepted rules of hygiene are ignored. Yet again, people with disabilities fall through a policy loophole.

Sheltered Workshops are called Adult Service Centres in Nova Scotia. They are places where the pattern of suspending good laws and policies in favor of expedience is perfected. Despite good intentions, vulnerable people are
  • segregated
  • not subject to minimum wage regulations
  • not protected from abuse
The government, which regulates and finances the whole scheme has policies on diversity and workplace harassment for its own employees, but does not extend the same protection to people in sheltered workshops. It is not rocket science to predict a day of reckoning, embarrassing to government and well-meaning charities. An assault, a shakedown, inappropriate touching - all are to be expected when vulnerable people are sequestered and there is no governing policy. The criminal code has been notoriously ineffective in the past. It recalls our unpleasant history of residential schools and institutions, and more recent lessons drawn from the Incompetent Person's Act. We must be extra careful to avoid past errors.

  • There is no consistent policy on sexual harassment, bullying, or financial exploitation. I asked the Department of Community Services for a copy of their policy and received this response: "Individual centres would have their own policies around harassment and their own mechanisms for dealing with participant complaints. We do not have a provincial policy." In fact, most centres have no policy.
  • Here is a telling quote from a Director at Rotary House, a sheltered workshop that does routine work for Kohler Windows: "the productivity of the clients at RH far surpasses that of the regular employees at Kolher." Shouldn't they be Kohler employees?


In sum, here is the test of the legislation:
  • Will it provide the means to end employment discrimination?
  • Will it provide the means to end separate and unequal transportation?
  • Will it provide the means to assure equality of health care?
  • Will it provide the means to end the unacceptable aspects of sheltered workshops?
Each of these problems is solvable. But they need to be acknowledged for the discrimination they represent, carefully thought through and frequently reviewed.

In pausing, you have acknowledged the depth of the disappointment in the legislation. In pausing, you have signaled a determination to get this important legislation right for its own sake, for the people of Nova Scotia, for people with disabilities, and for your legacy.

Thank you for considering this. Please do not hesitate to call or write if I can be of assistance.

Warren Reed

Submission to the Law Amendments Committee

The James McGregor Stewart Society002.jpg

Law Amendments Committee
Submission on Bill 59
November 4, 2016

Dear Committee,

The most important effect of Bill 59 derives from its very existence. People with disabilities welcome the affirmation it brings and eagerly await its practical effects.  We must not let them down.

Enabling productive, engaged and useful citizens is the objective. All Nova Scotians understand the emphasis on fairness and equality and will benefit from the opportunity to lift up a whole group of their fellow citizens.

Does the legislation have shortcomings?  Of course.  But Nova Scotia can ill afford to ignore the rights and situation of a whole class of citizens, especially as its own future is uncertain.  We cannot hold out for perfection when there is so much good to be done.  

The principal problem lies with inconsistent and conflicting priorities. The Act needs to continually challenge the assumption that access bears only costs and carries little economic or social benefit.

At every opportunity we need to acknowledge and quantify the costs of not improving access.  For example, exempting some classes of structures affects very tangible measures like employment, government support expenditures, tax revenue, and commerce.  It is the proper role of government to take a broad view of policy and the implications for the future.

In that regard, it is critical to grow the carrot as well as sharpen the stick.  The government needs to develop incentives and weigh their cost against long-term economic and social benefits.

In particular, we think these provisions could improve the chances for success of the Act:


Section
Change
Preamble
add AND WHEREAS the talents, potential and energies of people with disabilities are underestimated and underutilized.
3 (k)
Note Having the Department of Community Services as the responsible ministry may sound right to a casual observer, but it goes against the strong recommendations of the Minister's Advisory Panel. DCS, for all of its good works, represents a caretaker approach that has been largely supplanted by the acknowledgement of the rights and potential of all people. The two alternatives - support or self-reliance - are in fundamental conflict. Imagine instead that this Act was the responsibility of Justice, where the focus would be on civil rights, or even a business-related ministry, where the focus would be on productive participation, or the minister of education, where the focus would be on self-improvement and potential. The choice of department carries an important message.

Imagine if the responsibility for immigration fell under the Department of Justice. Do we want to welcome immigrants or watch them? The medium is the message, as a famous Canadian once said.
10
add Accept and investigate complaints of unimplemented standards in a timely and efficient manner
12
add Monitor, prototype and introduce technological innovations
add offer price concessions to local government through volume discounts
16
Note Four meetings a year bears the unmistakable promise of perpetual consultation, an endless dance where little is accomplished. It reminds me of the former Coordinating Council of Ministers responsible for The Disabled Persons Commission. They met 6 times in 3,956 days. With such a shameful precedent, this Board should meet monthly, and attendance should be mandatory.
17
add Identify practical incentives for standards implementation and assess their economic impact.
21 2 (a)
add A summary of the impact of the standard upon rights enumerated in the Charter, The UN Treaty and the Nova Scotia Human Rights Act
change A progressive timeline which takes into account both the immediate costs of implementation and the long term economic benefits, including government revenue and commercial activity.
21 3
add The cost of not adopting the standard
30
Note Sections 30 and 31 risk the invention of arbitrary classes. As in the building code, where rights are subject to made-up concept like change-of use or maximum size, the temptation will be to carve out groups to whom standards do not apply.
Why would someone's rights be different for a building under 200 square meters?
It might be tempting to exempt museums for example; they are sometimes in older buildings, and operate on tight budgets. But short-term relief in the form of exemptions invites long-term disaster for tourism (7 million New Englanders with disabilities), for culture, for history, for employment. Short-sighted expediency is usually a bad choice.
30(c) is particularly dangerous in that regard, and we recommend that it be removed.
45
Note Where is the compliance and enforcement function located? It should lie with the directorate

On a personal note I would like to add that my patience has been sorely tested by the long run-up to this legislation.  My initial enthusiasm of more than 2 years ago has been tempered by an increasing sense that nothing is happening and by having only one update from DCS. Nova Scotians have invested months and years in this process.  

Now we have the first and second readings of a bill that no one (except the business community) has seen, in quick succession followed by your hearing two business days later.  This bill itself allows 60 days for comment on standards.  There must be a happy medium.

Factor in the inadequacies of the transportation system, the fact that many of those most affected by the legislation have few resources, that they may not be able to take time from work, that they often don’t drive and you have opened the door to accusations of bias and discrimination.  In your case it may stem from ignorance, but it is typical in Nova Scotia.  This Bill is meant to dismantle barriers, and here you are erecting them!   

Nothing this legislature does will have more lasting effect than this Act.  It is your legacy, impacting Nova Scotians directly and indirectly for years to come.  The burden to get it right lies with you.  

Thank you for the opportunity to bring these important matters to your attention.  We trust that you will give them serious consideration.  Please do not hesitate to be in touch.  

Yours truly,

Warren Reed, spokesman

406-1540 Summer St
Halifax, NS B3H 4R9
902 482 4017