HARJOT ATWAL
<Staff Writer>
“The benefits of the social model approach are that it shifts attention from individuals and their physical or mental deficits to the ways in which society includes or excludes them. The social model is social constructionist or, as Michael Oliver (1990) prefers, social creationist, rather than reductionist or biologically determinist. Rather than essentialising disability, it signals that the experience of disabled people is dependent on social context, and differs in different cultures and at different times. Rather than disability being inescapable, it becomes a product of social arrangements, and can thus be reduced, or possibly even eliminated.”
–Tom Shakespeare, “Critiquing the social model” in Disability Rights and Wrongs (2006). “He is a sociologist. He has achondroplasia. Shakespeare was educated at Radley and Pembroke College, Cambridge, and gained a MPhil degree from King’s College, Cambridge in 1991.”
While in my “Disability and the Law” class, a student giving a presentation read aloud this quote and it really stuck out to me. I have previously written an article assessing the Osgoode’s “Audio Recording Policy” (the “Policy”) in terms of Moore v BC (Education), and I am also a writing a research paper for Prof. Mykitiuk on the same topic. Furthermore, she recently hired me to be her Research Assistant (RA) on her project about the “Principle of Respect for Difference in the context of Reproductive Decision-Making.” In researching this principle, I have examined the level of implementation of the Convention on the Rights of Persons with Disabilities (CRPD), and I am going to apply this type of analysis to the Policy in order to justify implementing a “Dean’s Recorder” policy.
Now, many people don’t naturally understand the “Social” model of disability, largely because it is counter-intuitive to their way of thinking. For example, as I have previously quoted Prof. MacGregor in this newspaper, “[p]eople can be impaired by their legs not working…but they are disabled by staircase building designs.” When I presented this argument to a good friend of mine in Osgoode’s cafeteria while discussing religion, he indicated to me that he did not understand and said something like: “No, they are disabled because they are in a wheelchair.”
While I don’t blame my good friend for thinking this way at all, I find the example to be very demonstrative. You see, his comment is the perfect example to illustrate why the “Charity” and “Medical” models of disability are problematic. Ultimately, rather than viewing disability as a “personal failing” as these models suggest, disability should instead be viewed as “social creationist, rather than reductionist or biologically determinist.” It is not even the staircase that disables someone per se; instead, it is the lack of access to a ramp or elevator. In the end, disability is really all about lack of “access to services” and the legal duty to “accommodate up to undue hardship;” additionally, this is also the essence of the principle of “Respect for Difference.” As Chief Justice McLachlin recently wrote in 2007, after describing how Voltaire’s England involved thirty different religions, living in peace and harmony:
“Canada is like Voltaire’s England in this respect. It is composed of many different groups, holding many different views. It is founded not on a demand for conformity, but on a respect for difference. The Charter reminds us to respect that difference. And respecting that difference is important. As Will Kymlicka notes, “if there is a viable way to promote a sense of solidarity and common purpose” in a diverse country like Canada, “it will involve accommodating, rather than subordinating,” different groups with different conceptions of the good. Members of these groups “will only share an allegiance to the larger polity if they see it as the context within which [their differences are] nurtured, rather than subordinated.”
Thus, Canada’s multicultural society should be all about respecting differences in the context of accommodating disability, instead of promoting a “demand for conformity.” For example, while many provisions of the Assisted Human Reproduction Act (AHRA) were declared invalid, it is nonetheless still prohibited to “pre-select or increase the probability that an embryo will be a particular sex (except to prevent a sex-linked genetic condition).”
Nonetheless, in Canadian society, certain ethnic groups that prefer to birth male heirs (such as Chinese-Canadian and Indian-Canadian communities) are nevertheless able to find ways around that AHRA provision. For example, there is no rule prohibiting doctors from disclosing the sex of the baby to pregnant mothers during routine ultrasounds and check-ups. However, once the pregnant mother knows, she can go to an abortion clinic at any time before going into labour and abort the fetus; this argument is important in relation to my RA project.
Now, while the fetus is not a person, people with disabilities are; thus, we need to find a way for Osgoode to increase its level of accommodation for students, so that it respects the principles enumerated in the CRPD including “Respect for Difference.” Even though the CRPD was only ratified in 2010 and has not yet been implemented in Canada because there is no existing legislation that explicitly implements it, it is nonetheless useful to keep the following argument in mind (from an article by Jacquelyn Shaw about section 7 Charter implications on organ donation/transplantation guidelines for the neurological determination of death):
“Since Canada has only recently ratified the treaty there is no existing legislation which already explicitly implements the treaty. Canada’s ratification statement thus suggests that implementation does not need to be achieved exclusively through explicit implementing legislation. Since existing mechanisms may already adequately implement the treaty, courts ought not to interpret a current lack of conspicuously labeled legislation (perhaps entitled “The Convention on the Rights of Persons with Disabilities Implementation Act”) to mean that the convention is unimplemented. Existing legislation should thus be reviewed for its adequacy in implementing the CRPD within Canadian law.”
The Audio Recording Policy is an example of an “existing mechanism” which must then be “reviewed for its adequacy in implementing the CRPD within Canadian law”. Currently, it is disputed how many lectures are actually recorded and how many still go unrecorded, either due to human error on the part of the professor or Camtasia recording equipment difficulties. Associate Dean Stribopoulous has indicated 65-75% of all overall lectures are recorded, but Student Caucus claims this number is closer to 60%.
This is not good enough! I have talked to a number of professors in person (eg. Ryder, Farrow, Gilmour, Mykitiuk, Hutchinson) and proposed my plan for a “Dean’s Recorder” program, and all have agreed it seems like a great solution. Instead of paying $7 million to upgrade our technology, we should instead promote a cooperative solution where professors and students work together. Similar to the Dean’s Scribe program, students would volunteer to help set up the equipment for the professor 10 minutes before the beginning of class.
Such a cooperative solution would be consistent with the principles underlying the current Dean’s Scribe program, decrease the likelihood that professors will forget to record the lecture by mistake, and create a means of accountability. After all, a number of professors have mentioned that even though they feel proficient in using the technology, many still experience difficulties getting everything set up – pulling down the screen, opening PowerPoint slides, answering students’ questions – before class, just because of too many things happening at once and human error.
Indeed, shortly before writing this article, I went to get help from IT to set up the equipment in my Legal Drafting class for Prof. Benda. Let me tell you: the technology is certainly not easy to use. There are a lot of steps, and I still haven’t figured it out. But, with some short training, I would have no problem being a Dean’s Recorder now that I feel well enough to attend class. At the end of the day, when thinking about the Living Tree doctrine, and considering the stigma and discrimination that often plagues individuals on the basis of one or multiple enumerated and analogous grounds protected by s.15 equality rights… I always think back to the following quote:
“Change your opinions, keep to your principles; change your leaves, keep intact your roots.”
–Victor Hugo (1802-1885), French Romantic poet, novelist, playwright, essayist, and writer.