Dans le présent article, les auteures—une experte en études critiques de l’incapacité et une professeure de droit—analysent d’un oeil critique une décision de la Cour d’appel fédérale qui soulève des questions de genre et d’incapacité. La cause porte sur l’accès aux prestations d’invalidité du Régime de pensions du Canada. Cynthia Harris, une mère qui a la sclérose en plaques, conteste l’application de la clause d’exclusion pour élever des enfants contenue dans le Régime de pensions du Canada. Mme Harris conteste la disposition pour la raison que le handicap de son enfant l’oblige à lui donner des soins parentaux plus longtemps que s’il s’agissait d’un enfant non handicapé. Les auteures critiquent les différentes approches visant à comprendre le concept d’égalité et son application aux questions d’incapacité et de genre. Elles prêtent une attention particuliè re aux critères de participation à la vie active dans la législation sur la prestation d’aide sociale et aux effets qu’elle produit sur les femmes, surtout celles ayant des handicaps. Elles réfléchissent sur l’approche formaliste de l’égalité et de sa compréhension ainsi que sur l’absence d’une analyse intersectionnelle dans le jugement. Il faut des réponses systémiques plutôt qu’individualisées pour bien accommoder les personnes en quête d’égalité. Les auteures soutiennent que pour envisager de telles revendications à l’égalité, il faudrait une approche théorique qui privilégie l’inclusion et la citoyenneté sociale.
In this article, the authors, one a critical disability studies scholar and the other a legal academic, critically consider a decision of the Federal Court of Appeal that engages questions of gender and disability. The case deals with access to Canada Pension Plan (CPP) disability benefits. Cynthia Harris, a mother who has multiple sclerosis, challenged the application of the CPP child-rearing drop-out rules contained in the legislation. Harris’s challenge is made on the basis that her child’s disability required parental care for a longer period of time than would be required for a non-disabled child. The authors critique the different approaches to understanding equality and its application to issues of disability and gender. Particular attention is paid to the manner in which workforce attachment tests in social benefit legislation have an impact on women and, in particular, on women with disabilities. The formalistic approach to, and understanding of, equality, coupledwith the absence of an intersectionality analysis in the judgment, is considered. [End Page 111] Systemic rather than individualized responses are required to properly accommodate equality seekers. The authors argue that a theoretical approach that places inclusion and social citizenship at its core is how such equality claims should be approached.
Introduction
Canada is a society that promotes and sustains equality, at least on paper. The Canadian Charter of Rights and Freedoms and various human rights codes are the mechanisms by which we do this through law.1 A progressive understanding of equality suggests that it is substantive,2 inclusive,3 and able to accommodate the complexity of the human condition.4 It is also intended to promote the dignity of the person.5 A recent report of the Canadian Human Rights Commission asserts that inclusion, which demands a systemic approach to accommodation, is the key to truly achieving equality.6 While this is what we say we are striving for as a society when we are trying to achieve equality, it becomes much more difficult in the face of the real complexities of Canadians’ lives to articulate what equality might look like “on the ground.” In this article, we discuss the situation of a young mother who challenged the way provisions of the Canada Pension Plan (CPP) were interpreted,7 when she found herself in need of a disability pension under the plan.8
Cynthia Harris is a woman who became unable to work when she developed multiple sclerosis (MS). In order to qualify for disability benefits under the CPP, she needed to be able to demonstrate “workforce attachment” according to the specific rules under the CPP scheme. The rules required that she have worked and paid into the CPP for four out of the six years preceding her claim for disability benefits.9 In fact, although she had been paying into the CPP during her working [End Page 112] years, she had been out of paid employment for a number of years due to the birth of her two children and her work of caring for them in their early years. One of her children was disabled and needed care beyond the age when a non-disasbled child would have been able to begin school full-time, and Harris provided this care, delaying her return to paid employment. As a consequence, and despite the availability of a special provision that allows parents caring for young children to drop certain years from their contributory period, Harris was ruled ineligible for disability benefits. Harris’s story is one that has resonated with us as authors both because of the intellectual engagements we each bring to these rich and complex claims for equality and because of who we are. One of us is a person living with cerebral palsy, who goes through every day encountering the barriers to inclusion that our society is not even able to see.10 The other is the mother of three children, whose experiences have provided personal examples of the kinds of gender inequality she has been writing about for over two decades as a legal scholar. For both of us, this case represents a paradigmatic example to examine inequalities at the intersection of disability and gender that remain pervasive in our society.
Mainstream feminism and the disability rights movement have made modest efforts to incorporate disability and gender into their respective discourses. As yet, though, feminism has a limited understanding of the daily lived realities of the disabled or impaired body.11 Disability theorists for their part have been slow to engage with the lived experiences of women in our society.12 Adaptations have been gradual and for the most part poorly conceived.13 The challenge ahead is to examine the oppression experienced by disabled women without recreating it in yet another form.14 While some forms of academic research may have objectified disabled women,15 the case of Cynthia Harris shows that legal/judicial analysis appears not to see her at all. [End Page 113]
Cynthia Harris
Cynthia Harris began working in 1987 as a server in a restaurant. She was in her twenties. Although her income was modest, she made her statutory contributions to the CPP. She and her husband, Troy, looked forward to having a family, and, in March 1989, their first child, Bradley, was born. Harris returned to work when Bradley was one, but when the couple’s second child, Jessica, was born in January 1991, the family decided that Cynthia would care for the children until they were old enough to enter school. In the spring of 1996, when he was seven years old, Bradley suffered a series of strokes that left him severely disabled. His recovery required him to relearn basic activities, including using his hands and walking. Although he was already of school age by this time, he was only able to attend school the equivalent of two days per week because of his disabilities. A letter from the Ministry of Community and Social Services verified that Bradley was considered to be disabled from August 1996 to August 2001.16
Harris felt that she “had no choice” but to stay with her son and care for him. The family lived outside of the major metropolitan centres, with few community supports for a child with Bradley’s needs. They had no relatives in Ontario, and Troy Harris worked a permanent night shift. Bradley’s needs for care were so highly specialized that the family could not afford to hire someone with appropriate training. By 1998, when he was nine years old, Bradley had recovered enough that he was able to attend school full-time, but Harris attended with him three days per week to ensure he was properly supported in school. She returned to paid work in January 2001.
In June 2002, Harris was obliged to stop working because of the impairments caused by MS that had initially been diagnosed in 1997. She filed a claim for disability benefits under the CPP in July 2002. As a parent who had been out of the workforce raising young children, she was eligible to rely upon the “Child Rearing Drop-Out” provision (CRDO). The CRDO is a provision of the CPP legislation that allows years when a claimant has reduced or no earnings while caring for a young child to be excluded from calculations of the amount of a benefit to be paid out or from the calculations of the years of contribution required to establish eligibility for a benefit.17 In Harris’s case, after applying the CRDO, the years 1990, 1992–7 were excluded from her contributory period to qualify for disability benefits. Unfortunately, this only left her with three years during which she had made the [End Page 114] required contributions, not enough for her to meet the workforce attachment test of four out of the past six years. Her request was therefore denied. She appealed the decision to a review tribunal in 2005, challenging the constitutional validity of the CRDO provisions under section 15 of the Charter. The review tribunal agreed with her assertion of inequality based on her son’s disability and allowed the operation of the CRDO for one additional year, making her eligible for a disability benefit.18 The Ministry of Human Resources and Skills Development appealed, and the Pension Appeal Board allowed the appeal in 2007. Harris applied for judicial review at the Federal Court of Appeal in 2008.
The Court’s Approach
The decision of the Federal Court of Appeal was handed down in January 2009. Justice Maxwell Evans wrote the decision in favour of the Ministry of Human Resources Canada, with a concurrence by Justice Michael Ryer. Justice Allen Linden provided a dissent.19 The majority decision did not find a violation of Harris’s equality rights, with the result that she remained ineligible for CPP disability benefits. Evans JA characterized the purpose of the CRDO narrowly, as a mechanism to relax the recency requirement test of workforce attachment in favour of parents who leave the workforce to look after young children. Thus, Evans JA reasoned, the CRDO applies equally to everyone since no parent of a child over seven years, whether or not their child has a disability, is entitled to rely on the CRDO. As Evans JA summarized his reasoning, since “all children take the same length of time to reach the age of seven . . . [it is not] a case where some parents are prejudiced because their children must be older than seven before they can go to school. Bradley Harris was unable to attend school in 1998 because of his disability, not because of his age.”20
What appeared to be motivating the reasoning of the majority was that “social and economic policy and priorities [are] to be decided in the political realm, not [in the realm] of constitutionally guaranteed human rights . . . [that are] determined by the courts.”21 Thus, Parliament is free to define the age of the child as the determining factor for CRDO eligibility, and if parents of disabled children older than seven are to be included, it is for Parliament to decide.22 Evans JA, to his credit, at least gave consideration to whether or not there was differential treatment of Harris. Ryer JA did not get that far. He found that Harris did not even meet the threshold set out in the language of section 15 of the Charter. He found that she [End Page 115] was not denied equal benefit of the law because she was able to use all of the years of drop-out that the CRDO provided. As he saw it, she received the maximum benefit the CRDO was designed to provide. He determined that she was complaining because the CRDO “should have provided more of a benefit” than it did.23 He concluded his analysis with the “observation” that she did not need to care for her son after 1998 and that if she had just returned to work for one year during the period from 1998 to 2001, she would have met the requirement.24 Implicit in Ryer JA’s “observation” is a condemnation of Harris’s decisions, a devaluing of the care she provided, an ignorance of the circumstances of families trying to meet the needs of a disabled child, and a “blame the victim” logic that suggests that it was her own poor decision making that led to her predicament.
The reasoning of Evans and Ryer JJA is in line with a series of earlier decisions of the Federal Court of Appeal relating to access to benefits by parents and specifically to mothers.25 In all of these cases, the court appears unable to appreciate the context within which women engage in market work and mother work. The reasoning that drives such decisions seems mired in the logic of formal equality, where a mother who has had the “maximum benefit” of a legislative provision has no grounds to complain that the provision fails to recognize her reality as a woman for whom the work of caring for children impacts on her patterns of workforce engagement.26 Adding to the complexity in this case, the child’s disability was argued as the basis for discrimination, and the court was unable or unwilling to recognize the different situation of a parent caring for a child with a disability when compared with the parent of a non-disabled child who is able to start school by age seven.
By contrast, in his dissent, Linden JA recognized that the CRDO provisions used age seven as the cut-off because this was the age when most children were able to attend school full-time, and, consequently, the demands on the parent to provide care for the child were reduced.27 Thus, Linden JA “refocused” his equality analysis on the guarantee that section 15 should provide substantive equality, not merely sameness of treatment or formal equality.28 He quoted extensively from the literature, reviewing the uneven development of equality analysis in Canada, ultimately quoting from the Supreme Court of Canada’s decision in R. v Kapp to emphasize that “the central concern of section 15 . . . [is] combatting discrimination, defined in terms of perpetuating disadvantage and stereotyping.”29 He also noted that for [End Page 116] “disabled individuals . . . it may be necessary for legislation to provide something extra to level the playing field in order to truly treat people equally.”30
In his equality analysis, Linden JA takes a contextual approach to the comparator group element recognizing that, in this case, the needs of parents with disabled children have been overlooked by a “well-meaning legislative scheme.”31 As is often the case, such an oversight leaves such parents facing a disproportionate and prejudicial economic impact. As a consequence, Linden JA concludes that the appropriate comparator group is all of the parents of children who do not need full-time parental care beyond age seven.32 He reasons that parents in that group have the “benefit of the CRDO for the full period that their labour choices are restricted by having to care for children at home full-time,” whereas Harris only had the benefit of the CRDO for part of the time that her child needed her full-time care.33 The key, in Linden JA’s view, is that “the CRDO . . . treated Ms. Harris as though she had a real choice to re-enter the workforce, when in fact she had none.”34 In caring for her child, she was engaged in precisely the activity the CRDO was intended to protect.35
Linden JA found that the distinction between parents of children with disabilities and parents of non-disabled children was discriminatory because he accepted the evidence of disadvantage as prima facie evidence of discrimination. He noted that disability often requires accommodation to achieve inclusion.36 For Linden JA, the discrimination is that the cut-off at age seven reflects “assumptions based on the capabilities of non-disabled children, without any regard for the different circumstances of disabled children who are not able to attend school full-time and continue to require ongoing full-time home care.”37 He observed that the approach advocated by the minister is “relentlessly oriented to the able-bodied” and overlooks the lack of choice for parents of children with severe disabilities.38
Finally, it is significant to observe that in this case both Linden JA in dissent, and the majority, accepted the claim that the discrimination Harris experienced was on the basis of her child’s disability. Although a claim of discrimination based on gender was included in Harris’s factum, gender was not mentioned in the decision of the Federal Court of Appeal. There may have been strategic reasons for how counsel approached the case in the Federal Court of Appeal, as [End Page 117] new counsel took the case on when it went to judicial review. As the lawyer for ARCH Disability Law Centre, counsel had greater access to the resources required to construct an equality argument based on disability and considered that such an argument had a greater chance of success than one based on gender.39 A quick review of equality decisions about access to benefit programs based on gender at the Federal Court of Appeal would also have suggested a poor chance of success.40 Perhaps it is not surprising in this context that the gender claim disappeared and that, as a consequence, Harris herself disappeared from view.
Visible Invisibility41
Just as Cynthia Harris was not really visible to the Federal Court of Appeal, women like her have been invisible to both disability theorists and feminists. In the early days of the disability movement, women were absent from view,42 and their experience and history largely absent or lost, owing to perceived invalidity or lack of worth.43 Non-disabled feminists have also been challenged to discern how to incorporate disabled women’s issues within their analysis of oppression.44 Neither feminist theory nor disability theory has truly reckoned with the lived experience of women with disabilities until recently.45 Disabled women live within two sets of devaluing expectations—on the one hand, as women and [End Page 118] mothers and, on the other, as people who are seen only as dependent and in need of care.46 Disabled women are viewed as deviations from the disabled male norm and the non-disabled female norm.47
There are one billion people with disabilities worldwide, yet the exclusion they experience, including in Western society, is profound.48 Disability is often characterized as problematic or complicated and is not readily incorporated into equality analysis,49 nor has it had the same degree of critical analysis as other grounds of equality. Traditional perceptions of disability and impairment as deficits remain largely intact, built on foundations of fear and ignorance, and reflecting historical myths and misconceptions about the “abnormality,” “dysfunction,” or “incapacity” of disability. Since they are not expected to be present or participating in society, and the assumed “global nature” of their disability prevents them from taking on any individual or social role,50 people with disabilities remain largely invisible and “out of place.”51 In this way, disabled women remain confined to the social margins, their invisibility and exclusion appearing (at least until very recently) somehow normal and natural.52 The effects of pain or of the speed-space-time continuum on a disabled person’s efforts to negotiate physical space are rarely, if ever, considered.53 The level of macro- and micro-organization necessary for a disabled person to appear to be managing seamlessly within non-disabled time and space is almost unimaginable to the non-disabled.54
At a fundamental level, the traditional mothering role of women has been deemed inappropriate for disabled women.55 Disabled women are rarely seen as [End Page 119] suitable for motherhood or reproduction.56 As a society, we remain quite uncomfortable with the notion of disability, sexuality, and maternal capabilities. The prevalence of non-accessible cribs, strollers, and playgrounds confirm that disabled women and children remain unexpected and unplanned for.57 Yet, the reality of disability means that many disabled women are sole parents and/or carers.58 Heather Kuttai, a disabled mother and wheelchair user, documents how she was perceived as “genderless” and “sexless.”59 Similarly, Liz Crow recounts wheeling vast distances to accessible toilets after giving birth and having her personal care attendants dismissed as “visitors.”60 Frequently, disabled women must fight to take on a “normal parenting or mothering” role.61 The case of Charlie Wilton and Maricyl Palisoc, parents with cerebral palsy, who were threatened with child apprehension simply because they were parents with disabilities, and not because they were incapable, provides a recent example.62
As new frameworks for analysis are developed, we must critically challenge existing physical constructs of the body and the ideology of independence.63 Until we do, to paraphrase Vera Chouinard and Ali Grant, “we (disabled women), remain largely nowhere near the project.”64 The experience of Cynthia Harris is a concrete example of how this is so. The various social support programs and services currently available rarely take account of the varied and particular [End Page 120] needs of disabled people, and those that do have nonetheless been developed largely without their input or expertise.65 Consequently, a “something is better than nothing” approach has evolved with regard to accessibility and may have been the logic operating in the majority decision in Harris.66 Established routines remain undisturbed, and disabled women “fit” in spaces and places where their needs are rarely considered.67 Western society remains focused on individualized responses to dealing with disability issues68 when what is called for are systemic changes to the structures of our social fabric.69
For example, the static notion of disability operating within the benefit programs (such as the CPP plan Cynthia Harris was trying to access) that we have established to support individuals in the face of disabilities fails to recognize the diversity and complexity of disability.70 This failure poses particular difficulties for individuals with variable chronic impairments such as MS. These individuals may not actually need income support on an ongoing basis, but the nature of the benefit system is such that they may be forced to leave paid employment in order to qualify for benefits needed during a “flare-up” period.71 MS (which is the disease that Cynthia Harris lives with) is a progressive disease of the brain and spinal cord that can cause double or blurred vision, extreme fatigue, loss of balance and coordination, muscle stiffness, speech problems, bladder and bowel problems, short-term memory problems, and partial or complete paralysis. It is most commonly diagnosed between the ages of fifteen and forty.72 The disease develops very differently in each individual who is affected by it. It may be very difficult to continue working full-time, either because of the severity of the symptoms or because employers often fail to appropriately accommodate the individual’s needs during periods of “flare up.” Over time, up to 80 percent of people with MS can no longer work.73
Canada does not have a co-ordinated disability policy per se. Most policies were formulated in the post-Second World War era, and subsequent programs and services have emerged sporadically in response to particular needs. This is precisely [End Page 121] what happened with the CRDO, which was “tacked on” to the CPP in 1983.74 Assistance policies related to disability are also largely add-ons to existing social policy, the latter arguably being designed to maintain nothing more than povertylevel support in order that recipients not become overly comfortable outside of the labour force.75 Income support programs for persons with disabilities also reflect a concept of perpetual rehabilitation, despite the socially constructed barriers that make participation so difficult. Privatization and devolution have led to a further fragmented and disjointed service delivery structure.76 States’ deficit concerns and constantly changing criteria also impact access to benefits for disabled people.77 It is thus not surprising that poverty is a constant for many disabled people and particularly disabled women.78
The CPP disability benefit, which is intended to support workers in the face of disability, is difficult to access for those who do not fit the norm of the “ideal worker.” This is especially so for women, because the workforce attachment test, which is already challenging for women whose work patterns are different than men’s, is made more difficult for mothers of children in need of care beyond the CRDO age because of a disability. A further layer of exclusion exists for a person with a disability that is episodic, where the pattern of workforce attachment is again different from the norm of the non-disabled male. A narrow understanding of disability fails to take account of the multiplicity of physical, social, and environmental factors (home support, personal assistance, and transport) that have a profound influence on the ability of people with disabilities to consider or to pursue waged employment, particularly outside of the home. A workforce attachment test that takes no account of the episodic nature of some disabilities or of the interaction of disability and maternity in creating different workforce attachment patterns leaves mothers such as Harris with no access to support from a program to which she had contributed. The CRDO “add-on” to the CPP took no account of her, or her child’s, actual needs.
Claims made by disabled women are often misinterpreted as their private frustrations arising from disablement, as opposed to their engagement with the lack of social justice.79 While this discourse was not operating explicitly in Harris’s [End Page 122] case, the focus of the court’s analysis was on her child, and she simply disappeared, except to be chastised by one judge for her failure to engage in paid employment at the “appropriate” time.80 Such an analysis is ripe for feminist critique, but feminist theorists have focused much of their discussion of disability on the work of non-disabled women caring for people with a disability. Disabled women are perceived as representing the ultimate loss of control and independence as defined by the wider culture.81 There is a tendency to confuse the need for assistance with dependency and vulnerability, whereas they are simply part of the human condition.82 Such writers often fail to acknowledge that disabled women themselves may be carers, as was the case with Cynthia Harris, for example.83
The liberal norm of independence presumes linear physicality, and our fixed ideals of normalcy are rarely attainable by women with disabilities, in either the public or the private sphere.84 The “speed-space-time management” realities of disability and/or impairment remain largely unrecognized. For disabled people, the timing and spacing of the most basic activities of daily life are often organized to the last detail and often dictated by the inflexibility of support structures, such as personal care attendants’ working hours or the scheduling of the “Handi- Transit”bus service to get to work.85 Time usage in association with domestic and personal care activities for people with disabilities remains largely unrecognized, as indeed it does for women’s domestic labour generally.86 Failure to consider the finite reality of time in a disabled person’s daily life reflects an arrogance concerning the nature of personal bodily mechanics and the supposed “fixed” nature of the environment and the manner in which the individual moves within it. In the case of Cynthia Harris, she was struggling to care for her severely disabled child in the absence of adequate social supports at precisely the same time that she would have been struggling to adapt to her own newly diagnosed disability. This reality is not acknowledged by the court, not even by Linden JA, who at least was able to see her work in caring for her child.
The failure of policy makers to account for such factors as the time demands of caring for dependents, the challenges in finding affordable quality childcare, and the need for some flexibility in work hours, has contributed directly to the difficulties for non-disabled women to participate in the paid labour market.87 The same challenges face disabled women, but they are magnified by the “speed-space-time [End Page 123] management” challenges that a disability may create.88 Lack of assistance with basic domestic labour often prevents disabled women from accessing the paid labour market.89 In addition, to be able to function fully, disabled women rely upon the assistance of personal attendants or carers. Cynthia Harris might well have been able to function in the workplace with such assistance and with similar assistance at home or in the school to help meet Bradley’s needs. The fit between the world of work and the world of care is poor for women, and it is poor for persons with a disability. How much more is this so for a woman with a disability, such as Cynthia Harris, caring for a child with a disability?
Conclusion
True inclusion requires that dominant groups move beyond just making incremental changes to existing terms of reference.90 Systemic change could allow disabled women to move from the periphery to the centre of equality discourse. Unfortunately, Cynthia Harris’s case shows just how far from the centre an equality claimant can find herself, when the basis for her exclusion comprises her gender, her disability, and her child’s disability. As the authors of the report entitled Accommodation in the Twenty-First Century state in the introduction, “if human rights commitments were implemented with seriousness by governments at all levels, and if tribunals and courts adjudicated human rights legislation purposively and substantively to provide clear-sighted direction to public and private actors, much could be done to improve the lives of people with disabilities.”91 In several cases, the Supreme Court of Canada has recognized the need to address the imbalances of power and the exclusion that is created when the needs of those who depart from the norm are not taken into account.92 In other cases, however, where the Court has focused on the nature of services that are already being offered by the government rather than on the particular circumstances of an equality claimant, it has not been able to entertain arguments that suggest that different or [End Page 124] supplementary services might be needed to truly meet the needs of some members of society.93
In Harris, the majority was clearly stuck in an analysis that failed to take a broad and contextual approach to the claim and to the purpose of both the legislation94 and the Charter. The majority justices also seemed to be of the view that Harris could not legitimately make a claim for “more” benefit than anyone else, at least not without the legislature explicitly so deciding.95 By contrast, Linden JA seemed to grasp the need for the court to “adjudicate . . . purposely and substantively,” and he considered the claims of Cynthia Harris with a view to including her within a scheme that he saw as being intended to address the very needs she was experiencing. He took account of the context within which she was caring for Bradley and understood that without the support of other family members, or of community care, or without the financial resources to hire private care, Harris did not have a real or meaningful choice between returning to paid employment and caring for her child. The rhetoric of choice is of course a dangerous one in the context of advancing women’s equality. Too often, such discourse is used to “privatize” the social reproductive work of women. When pregnancy and childrearing are characterized as individual “choices,” the larger benefits to society, as well as the responsibility of society not to burden those who bear and raise children, are lost. The women (predominantly) doing that work again become invisible.96 While Linden JA is correct to outline the very real restrictions Cynthia Harris faced, it is important to identify those restrictions as a failure of our collective responsibility to support social reproductive work and not a failure on her part to make an appropriate “choice.”
Linden JA was also quick to reject the “relentlessly able-bodied” assumptions built into the CRDO’s use of age seven as a cut off.97 Just as the “add disability and stir” approach to various social assistance systems in Canada has failed, in large measure, to recognize the diversity and complexity of disability in everyday life, the interpretation of the CRDO given by the Federal Court of Appeal has also failed to recognize that same diversity and [End Page 125] complexity.98 Rather than facilitating independent living options, such programs appear to operate more as schemes to compensate for society’s failure to meaningfully include disabled individuals.99 Court decisions such as the Harris decision also fail to go any distance towards facilitating independent living and inclusion. As Gwen Brodsky, Shelagh Day, and Yvonne Peters note, inclusion requires a systemic approach to accommodation, not an individualized one.100 They also note that the comparator group analysis that evolved in equality jurisprudence in the era following Law v Canada101 was not amenable to accommodating difference and to taking into account the ways in which our society is organized to create “headwinds to the enjoyment of society’s benefits.”102 Interpretations such as that given by the Federal Court of Appeal simply create more headwinds for disabled mothers trying to access basic income replacement while also providing care for young children.
Canada has made commitments through our various human rights codes, through the Charter and through our ratification of various international agreements, including the Convention on the Rights of Persons with Disabilities,103 the Convention on the Elimination of All Forms of Discrimination against Women,104 as well as the International Covenant on Economic, Social and Cultural Rights,105 to eliminate discrimination and promote equality by taking all appropriate steps to the maximum extent of the resources available.106 All of these can be seen as indications of Canada’s seriousness about achieving equality for all, yet courts and legislatures still fail to provide the tools to make these work in practice. Inclusion must be the touchstone of Canada’s commitment.107
Inclusion requires the ability to see the ways in which our current social structures contribute to excluding some individuals among us and the creativity to imagine ways to challenge those structures and enrich our society through the participation of all [End Page 126] people. Every Canadian must move beyond the “conceptual limitation of vision that constructs the real barriers.”108 We need people such as Cynthia Harris to challenge the rules and tell the stories of the complexities of life beyond the “norm.” We also need our governments and our courts to “get it.” [End Page 127]
Nancy Hansen is the director of the Interdisciplinary Master’s Program in Disability Studies at the University of Manitoba.
Lorna A. Turnbull is dean and associate professor in the Faculty of Law at the University of Manitoba. A graduate of the International School of Geneva in Switzerland, Queen’s University, the University of Ottawa, and Columbia University in New York City, she has taught and published in both law and women’s studies. In addition to teaching and academic writing, she is involved in social development at the community and national levels, has served as an expert witness in cases touching on mothers’ equality claims, and is a member of an advisory group on gender-based analysis of budgets and legislation, which has developed high-profile legislative interventions on budgetary politics.
The authors wish to thank Myra Tait (JD class of 2013, University of Manitoba) for her research assistance. They would also like to thank the peer reviewers who clearly put a lot of thought and care into reviewing the work and making helpful suggestions. The article’s title comes from Dianne Pothier’s article “On Not ‘Getting It’” (1994–5) 33 Alberta Law Review 817 at 817–18, which discusses the “relatively high capacity to not ‘get it’” when it comes to understanding a “multi-faceted conception of equality.”
Footnotes
1. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK) 1982, c 11 [Charter].
2. Andrews v Law Society of British Columbia, [1989] 1 SCR 143, 56 DLR (4th) 1; Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 [Law]; R v Kapp, 2008 SCC 41, [2008] 2 SCR 483 [Kapp].
3. Donna Greschner, “The Purpose of Canadian Equality Rights” (2001–2) 6 Review of Constitutional Studies 291; Denise G Réaume, “What’s Distinctive about Feminist Analysis of Law? A Conceptual Analysis of Women’s Exclusion from Law” (1996) 2 Legal Theory 265.
4. Pothier, supra first unnumbered note at 818.
5. Kapp, supranote 2; Greschner, supranote 3; Daphne Gilbert, “Time to Regroup: Rethinking Section 15 of the Charter” (2003) 48 McGill Law Journal 627.
6. Gwen Brodsky, Shelagh Day, and Yvonne Peters, Accommodation in the Twenty-First Century (Ottawa: Canadian Human Rights Commission, 2012), online: Canadian Human Rights Commission <http://www.chrc-ccdp.gc.ca/proactive_initiatives/default-eng.aspx>.
7. Canada Pension Plan, RSC 1985, c C-8 [CPP].
8. Harris v Canada (Minister of Human Resources and Skills Development), 2009 FCA 22, [2009] 4 FCR 330 [Harris].
9. CPP, supranote 7 at s 44(2), operating with the Canada Pension Plan Regulations, CRC, c 385, s 77(1)(a).
10. A lack of vision, as Pothier, supra first unnumbered note, calls it.
11. Susan Wendell, “Feminism, Disability and Transcendence of the Body” in Diane Driedger, ed, Living the Edges: A Disabled Women’s Reader (Toronto: Inanna Publications and Education, 2010) 55.
12. Ibid; Len Barton, “Sociology and Disability: Some Emerging Issues” in Len Barton, ed, Disability and Society: Emerging Issues and Insights (London: Longman, 1996) 3.
13. Deborah Lisi, “Found Voices: Women, Disability and Cultural Transformation” in Mary Willmuth and Lillian Holcomb, eds, Women with Disabilities: Found Voices (New York: Haworth Press, 1993) 195. Pothier, supra first unnumbered note, also expressed frustration and surprise at the inability of some feminists to truly grasp the situation of those disadvantaged on the basis of race or disability.
14. Rosemarie Garland-Thomson, “Disabled Women as Powerful Women in Petry, Morrison, and Lorde: Revising Black Female Subjectivity” in David T Mitchell and Sharon L Snyder, eds, The Body and Physical Difference: Discourses of Disability (Ann Arbor, MI: University of Michigan Press, 1997) 240.
15. Ayesha Vernon, “A Stranger in Many Camps: The Experience of Disabled Black and Ethnic Minority Women” in Jenny Morris, ed, Encounters with Strangers: Feminism and Disability (London: Women’s Press, 1996) 48; Vera Chouinard and Ali Grant, “On Not Being Anywhere Near the ‘Project’: Revolutionary Ways of Putting Ourselves in the Picture” in Linda McDowell and Joanne P Sharp, eds, Space, Gender, Knowledge: Feminist Readings (London: Arnold, 1997) 147.
16. Cynthia Harris v Min of Social Development Canada (SDC), formerly Human Resources Development Canada (1 June 2005), Appeal 78058 (OCRT) (Testimony of the Appellant at 13–14) [Harris Review Tribunal] [on file with authors].
17. CPP, supranote 7 at s 42(2); Canada Pension Plan Regulations, supranote 9 at s 77(1)(a). The Child Rearing Drop-Out (CRDO) rules are almost as arcane as some of the provisions of the Income Tax Act, RSC 1985, c 1 (5th Supp). For a more complete explanation, see the reasons of Linden JA in Harris, supranote 8 at paras 5–9.
19. Harris, supranote 8, leave to appeal to SCC denied. Cynthia Harris v Minister of Human Resources and Skills Development, [2009] SCCA No 127, 2009 CanLII 36264 (SCC).
21. Ibid at para 86; see also paras 89–91.
22. Ibid at paras 81–5.
23. Ibid at paras 107–8.
24. Ibid at para 110.
25. See Lorna A Turnbull, “The Promise of Brooks v Canada Safeway Ltd: Those Who Bear Children Should Not Be Disadvantaged” (2005) 17 Canadian Journal of Women and the Law 151.
26. Much like the “pregnant persons” logic of the late 1970s. See Bliss v Canada (Attorney General), [1979] 1 SCR 183, 92 DLR (3d) 417.
28. Ibid at para 20.
30. Ibid at para 27.
31. Ibid at para 62.
32. Ibid at para 40. Linden JA adopted the comparator group proposed by the applicant’s counsel: the parents of all non-disabled children six years and under, and the parents of children seven and older, whose disabilities are not severe enough that they are prevented from attending school full-time.
33. Ibid at para 41 [emphasis in original].
34. Ibid at para 33.
35. Ibid.
36. Ibid at para 54.
37. Ibid at para 57; see also para 62.
38. Ibid at paras 58, 60.
39. Harris v Canada (Minister of Human Resources and Skills Development), 2009 FCA 22, [2009] 4 FCR 330 (Factum of the Appellant); Interview of Ms Laurie Letheren, Counsel for ARCH Disability Law Centre, by Myra Tait (28 May 2012) [unpublished].
41. Some forms of disability are not readily apparent to an observer, but disabilities that cause mobility impairments or that require the use of “hardware” such as wheelchairs are easily noticeable. Despite this, they remain invisible, in the sense of being unaccounted for, in the eyes of our society and often in the eyes of the court. This is the conceptual limitation of vision that Pothier speaks of (supra first unnumbered note). Similarly, women who are mothers are also noticeable even though the work they do is not taken account of.
42. Diane Driedger, The Last Civil Rights Movement: Disabled Peoples’ International (New York: St Martin’s Press, 1989).
44. Margaret Lloyd, “The Politics of Disability and Feminism: Discord or Synthesis?” (2001) 35 Sociology 715; Jenny Morris, “Us and Them? Feminist Research, Community Care and Disability” (1991) 11:33 Critical Social Policy 22; Susan Wendell, “Towards a Feminist Theory of Disability” in Lennard J Davis, ed, The Disability Studies Reader (New York: Routledge, 1997) 260.
45. Chouinard refers to disabled women as the “relatively ‘invisible’ sisters in the supposedly common struggle for women’s rights.” Vera Chouinard, “Life at the Margins: Disabled Women’s Explorations of Ableist Spaces” in Elizabeth Kenworthy Teather, ed, Embodied Geographies: Spaces, Bodies and Rites of Passage (London: Routledge, 1999) 142 at 146. In feminist legal theory, the recognition that an individual may have a qualitatively different experience (that is, not just “additive”) if she experiences discrimination on the basis of another minority status as well as gender was first explored by Kimberleé Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color” (1990– 1) 43 Stanford Law Review 1241, and in Canada by Nitya Duclos, “Disappearing Women: Racial Minority Women in Human Rights Cases” (1993) 6 Canadian Journal of Women and the Law 25. However, while the theoretical notion has been accepted, the practical meaning of intersectionality as it affects women with disabilities has not always been adequately attended to.
46. Hilary Brown and Helen Smith, “Assertion, not Assimilation: A Feminist Perspective on the Normalisation Principle” in Hilary Brown and Helen Smith, eds, Normalisation: A Reader for the Nineties (New York: Routledge, 1992) 149 at 162.
48. World Health Organization (WHO), World Report on Disability (Geneva: World Health Organization, 2011) at 29, online: WHO <http://whqlibdoc.who.int/publications/2011/9789240685215_eng.pdf>.
49. Heather Kuttai, Maternity Rolls: Pregnancy Childbirth and Disability (Black Point, NS: Fernwood, 2010) at 97.
50. Nasa Begum, “Disabled Women and the Feminist Agenda” in Hilary Hinds, Ann Phoenix, and Jackie Stacey, eds, Working Out New Directions for Women’s Studies (London: Falmer Press, 1992) 61.
51. Nancy Hansen and Chris Philo, “The Normality of Doing Things Differently: Bodies, Spaces and Disability Geography” (2007) 98 Tijdschrift voor Economische en Sociale Geografie 493 at 495–7. Pothier, supra first unnumbered footnote at 819, describes how disabled law students are not expected to do well in their studies.
52. Tanya Titchkosky, The Question of Access: Disability, Space, Meaning (Toronto: University of Toronto Press, 2011) at 26.
55. Iris Marion Young, “The Scaling of Bodies and the Politics of Identity” excerpt from Iris Marion Young, Justice and the Politics of Difference (Princeton, NJ: Princeton University Press) 122, cited in McDowell and Sharp, supranote 15 at 218.
56. See Kuttai, supranote 49 at 97–8; Jenny Corbett, “A Proud Label” (1994) 9 Disability and Society 347, in Ann Pointon with Chris Davies, eds, Framed: Interrogating Disability in the Media (London: British Film Institute, 1997) 166; Morris, supranote 44.
58. Diane Driedger and Michelle Owen, “Introduction” in Diane Driedger and Michelle Owen, eds, Dissonant Disabilities: Women with Chronic Illnesses Explore Their Lives (Toronto: Women’s Press, 2008) 1.
60. Liz Crow, “Invisible and Centre Stage: A Disabled Woman’s Perspective on Maternity Services” (Paper presented to the Department of Health Open Forum Event of the Children’s National Service Framework (Maternity Module), University of Leeds, Leeds, UK, 15 January 2003) at 4, online: University of Leeds <http://www.leeds.ac.uk/disability-studies/archiveuk/Crow/Invisible%20and%20centre%20stage.0302.pdf>.
61. Nancy Hansen, Passing through Other People’s Spaces: Disabled Women, Geography and Work (PhD thesis, Department of Geography and Topographic Science, University of Glasgow, 2002) at 143–4 [unpublished].
62. Curtis Rush and Anita Li, “Disabled Couple Thrilled They’ll Be Able to Keep Their Baby” Toronto Star (4 May 2012), online: Toronto Star <http://www.thestar.com/news/gta/article/1173602-disabled-couple-thrilled-they-ll-be-able-to-keep-their-baby>.
63. Susan Wendell, The Rejected Body: Feminist Philosophical Reflections on Disability (New York: Routledge, 1996); Helen Meekosha, “Body Battles: Bodies, Gender and Disability” in Tom Shakespeare, ed, The Disability Reader: Social Science Perspectives (London: Cassell, 1998) 163. Martha Fineman is a legal theorist who has long challenged notions of autonomy and independence and is currently writing about “vulnerability” as a construct that describes the human condition, either at various stages of development or by virtue of disability whether permanent or temporary. See Martha Albertson Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition” (2008–9) 20 Yale Journal of Law and Feminism 1 at 8; Martha Albertson Fineman, The Neutered Mother, the Sexual Family, and Other Twentieth Century Tragedies (New York: Routledge, 1995).
71. Ruth Pinder, “Sick-but-Fit or Fit-but-Sick? Ambiguity and Identity at the Workplace” in Colin Barnes and Geof Mercer, eds, Exploring the Divide: Illness and Disability (Leeds, UK: Disability Press, 1996) 135.
72. Multiple Sclerosis Society of Canada, “Moving Toward Inclusion and Prosperity: Brief to the Standing Committee on Finance, Pre-Budget Consultation” (12 August 2011) at 2, online: Multiple Sclerosis Society of Canada <http://mssociety.ca/en/pdf/FinBrief2012PreBudget ConsulFinalAug11.pdf>.
73. Ibid.
74. An Act to Amend the Canada Pension Plan, SC 1976–77, c 36, s 4 (entered into force 10 August 1983).
75. Gail Fawcett, Living with Disability in Canada: An Economic Portrait (Hull, QC: Human Resources Development Canada, Office for Disability Issues, 1996) at 140–50; Robert F Drake, Understanding Disability Policies (London: MacMillan, 1999).
77. Michael Bach and Marcia Rioux, “Social Policy, Devolution and Disability: Back to Notions of the Worthy Poor?” in Jane Pulkingham and Gordon Ternowetsky, eds, Remaking Canadian Social Policy: Social Security in the Late 1990s (Halifax, NS: Fernwood, 1996) 317.
78. Pamela Moss and Isabel Dyck, “Inquiry into Environment and Body: Women, Work, and Chronic Illness” (1996) 14 Environment and Planning D: Society and Space 737.
79. Morris, supranote 44; Corbett, supranote 56; Rosemarie Garland-Thomson, Extraordinary Bodies: Figuring Physical Disability in American Culture and Literature (New York: Columbia University Press, 1997).
84. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990); Wendell, supranote 63 at 88.
86. Ibid at 497–8.
88. Hilary Metcalf, “Hidden Unemployment and the Labour Market” in Eithne McLaughlin, ed, Understanding Unemployment: New Perspectives on Active Labour Market Policies (New York: Routledge, 1992) 160.
92. Council of Canadian with Disabilities v VIA Rail Canada Inc, 2007 SCC 15, [2007] 1 SCR 650, citing with approval “Meiorin” (British Columbia (Public Service Employee Relations Commission) v British Columbia Government and Service Employees’ Union (BCGSEU), [1999] 3 SCR 3, 176 DLR (4th) 1 (per McLachlin CJC), where the court outlined positive obligations on employers to implement inclusive standards. See also Nova Scotia (Workers’ Compensation Board) v Martin; Nova Scotia (Workers’ Compensation Board) v Laseur, 2003 SCC 54, [2003] 2 SCR 504.
93. See, for example, Auton (Guardian ad litem of) v British Columbia (Attorney General), 2004 SCC 78, [2004] 3 SCR 657. Brodsky, Day, and Peters, supranote 6 at 40–1, also explore the limits of equality claims in such circumstances.
94. The purpose of the CPP is to provide a reasonable level of income replacement on the retirement, disability, or death of a contributor (Harris, supranote 8 at para 29) and of the CRDO to ensure that a contributor who remains home to care for young children will not be penalized for that period during which he or she has low or zero earnings (ibid at para 30).
95. Ibid at paras 85, 86, and 108.
96. In the two most significant Supreme Court of Canada decisions relating to childbearing and rearing, the court expressed this same concern. See Lorna A Turnbull, “The Dilemmas of Feminist Activism in Law” (2006) 8 Journal of the Association for Research on Mothering 129, for a discussion of Brooks v Canada Safeway Ltd, [1989] 1 SCR 1219, 59 DLR (4th) 321, and Reference re Employment Insurance Act (Can), ss 22 and 23, 2005 SCC 56, [2005] 2 SCR 669.
98. The various programs rarely complement one another, each having different eligibility requirements and administrative mechanisms. See G Allan Roeher Institute, Poor Places: Disability-Related Housing and Support Services (Downsview, ON: Roeher Institute, 1990).
99. Rob Imrie, Disability and the City: International Perspectives (London: Paul Chapman, 1996); Drake, supranote 75.
102. Brodsky, Day, and Peters, supranote 6 at 33–6, 35, citing Eaton v Brant County Board of Education, [1997] 1 SCR 241, 142 DLR (4th) 385 at para 67.
103. Convention on the Rights of Persons with Disabilities, 46 ILM 443 (2007), online: UN Enable <http://www.un.org/disabilities/default.asp?id=150>.
104. Convention on the Elimination of all forms of Discrimination against Women, 19 ILM 33 (1980), online: UN Division for the Advancement of Women <http://www.un.org/womenwatch/daw/cedaw>.
105. International Covenant on Economic, Social and Cultural Rights, 6 ILM 360 (1967), online: Office of the United Nations High Commissioner for Human Rights <http://www2.ohchr.org/english/law/cescr.htm>.
106. See Brodsky, Day, and Peters, supranote 6 at 44; Lorna A Turnbull, “CEDAW as a Tool to Ensure Economic Equality for Mothers in Canada” (2012) 3 Journal of the Motherhood Initiative for Research and Community Involvement 9.
107. Pothier, supra first unnumbered footnote; Greschner, supranote 3; Réaume, supranote 3; Brodsky, Day, and Peters, supranote 6.
108. Pothier, supra first unnumbered footnote at 820.
