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Legal Rights of the Physically Disabled

Pertinent Canadian Statutes

Canada Evidence Act
s. 6(1)

Saskatchewan Evidence Act
s. 13(1)

Charter of Rights and Freedoms
s. 15(1) and s. 24(1)

Canadian Criminal Code
s. 475 and s. 544

The Canadian Courtroom

Justice Scale

Canada has a high-toned Charter of Rights (enacted as the Constitution Act in 1982). Despite that legislation, in 2018 the rights of physically disabled citizens get little protection in Court. All too frequently, your disability will be exploited. Assert your rights using the tools on this page.

It is both your duty and your right to be present at any court proceeding in which you are a named party. This applies to family law, civil law, and criminal law; it extends to the minor judicial units such as Small Claims Court, arbitration boards, and tribunals. Parliament proclaimed this right for all Canadian citizens, whether healthy or disabled.

But laws are only theory. Reality is harsher: If you are physically disabled, expect a battle. Your legal rights will not be protected automatically. My own experience mirrors that of other disabled persons in the courts of Saskatoon, Canada. Your physical disability will not be accommodated by the court. Rather, it will be exploited.

The justice system is an adversarial system. In a courtroom, a witness is always questioned twice. First, the side calling the witness questions him or her in the Examination in Chief. Next, the opposing side has a turn and conducts a Cross Examination of the witness. This can go back and forth again in Rebuttal testimony.

In court, oral testimony under oath is given greater weight than other types of evidence. This surprises people – it is the opposite of many other professions where the written word is considered more substantial than talk. Examples are the sciences and finance. When a geology appraisal, a medical research paper, or your Income Tax Return are written down and signed, it means the author stands behind the accuracy of their statements. In such fields, the written word is the prime means of communication.

But in a courtroom, a Judge is trained to place the greatest weight on oral testimony. The Judge will give little, or no, consideration to written evidence, even if it is Affidavit format, unless you attend the court session and testify in person. The reason is, that the opposite side should be given the opportunity to question or cross-examine the evidence.

If you represent yourself, it is imperative that you be present in the courtroom. If you have an attorney, you should still attend court, because you will need to instruct your attorney, help to locate documents, and interact during the questioning of witnesses.

This requirement for personal attendance creates a barrier for citizens who are physically disabled and ill. Sometimes the barrier is insurmountable. If that happens to you, then browse this website for some basic but solid legal arguments and precedents.

Saskatchewan Evidence Act

13(1) Persons with Disabilities — If a witness has difficulty communicating evidence because of a mental or physical disability, the court may permit the witness to testify by any means that enables the evidence to be intelligible.

Canada Evidence Act

6(1) Evidence of Person with Disability — If a witness has difficulty communicating by reason of a physical disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible.

Canadian Charter of Rights and Freedoms

15(1) Equality Rights — 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, age or mental or physical disability.

24(1) Enforcement — Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Charter of Rights:  Test for Discrimination

You fall within an enumerated category of section 15(1) of the Charter if you are physically disabled or physically ill. This is a historically disadvantaged group. When serious, premeditated discrimination makes the court system inaccessible to someone in an enumerated category, then section 24(1) permits a just remedy. This section of the Charter guarantees and enforces the rights of ordinary citizens. According to the Charter of Rights Decision Digest, the analysis of whether you have been discriminated against proceeds in three stages:

LEGAL TEST FOR DISCRIMINATION PROCEEDS IN 3 STAGES
Stage 1

The claimant must show that the law, program or activity imposes differential treatment between the claimant and others with whom the claimant may fairly claim equality.

Analysis:  You can fairly claim equality with the population of Canada, where all citizens are granted the basic right to attend their own court proceedings. In family or civil law, the issue under consideration will affect your life irrevocably. Even more important is criminal law, where each citizen has the right to be tried by a jury of their peers, and the right to be present at their own trial. To do otherwise is to segregate the disabled or ill person, to single you out for differential treatment simply because the standardized court schedule is beyond your physical capacity.

Stage 2

The claimant must demonstrate that this differentiation is based on one or more of the enumerated or analogous grounds.

Analysis:  The Charter s. 15(1) forbids discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability. The items in that list are called ‘enumerated grounds.’ The ground on which you are being discriminated against is physical disability.

Stage 3

The claimant must establish that the differentiation is a form of discrimination that demeans the claimant's human dignity. The ‘dignity’ aspect of the test is designed to weed out trivial or other complaints that do not engage the purpose of the equality provision.

Analysis:  The purpose of s. 15(1) of the Charter is to prevent the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings, equally deserving of concern, respect and consideration. You are asking for equal recognition at law: an equal opportunity to make full answer and defence at a Canadian court proceeding. This right is considered essential for all other citizens of Canada.

Central Tenet:  Equal Participation

Disabled persons encounter additional limits when confronted with systems which assume or require a different set of abilities than the ones they possess. Equal participation of disabled persons will require changing these situations in many different ways, depending on the abilities of the person. The question in each case is not whether the state has excluded all disabled persons or failed to respond to their needs in some general sense, but rather whether it has been sufficiently responsive to the needs and circumstances of each person with a disability.

Discrimination does not lie in the attribution of untrue characteristics to the disabled individual. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them.

The attribution of stereotypes does not apply here. It is, rather, a case of reverse stereotyping which, by not allowing for the condition of a disabled individual, ignores his or her disability and forces the individual to sink or swim within the mainstream environment. The central purpose of s. 15(1) in relation to disability is the recognition of actual characteristics, and reasonable accommodation of these characteristics. It follows that disability, as a prohibited ground, differs from other enumerated grounds such as race or sex because there is no individual variation with respect to those grounds.

Take-away point: Disability is the only enumerated grounds with individual variation.

Example of Discrimination Contrary to the Charter

In the precedent Eaton v. Brant (County) Board of Education 1995 ONCA 980, a school limited the options for child Emily, but the decision was made on a prohibited ground, namely disability. The parents of Emily sought a legal remedy. The court ruled in her favor, saying: Infringement of the Charter s. 15(1) occurs when a distinction is made by a state actor based on a prohibited ground, which deprives a person of a benefit or imposes a burden or disadvantage.

Segregation is a disadvantage. Removing Emily from the classroom altogether would create a burden or a disadvantage, and also deprives her of a benefit. The history of discrimination against disabled persons, which the Charter sought to redress and prevent, is a history of exclusion.

From the earliest age, disabled children should see themselves as part of the mainstream of society, and children who are not disabled should see them the same way. These enabling perceptions, carried into adulthood, have the power to affect, on both sides, expectations about the extent to which the community is and should be accessible and about standards of behavior in the workplace, both for employers and employees.

Supreme Court Test for Abscond

In criminal court, the Crown Prosecutor will certainly exploit your disability. The Judge may or may not follow that self-serving path. The exploitation takes this form:

Canadian Criminal Code
Section 475
A Trial can proceed in your absence if you abscond.
Canadian Criminal Code
Section 544
A Preliminary Inquiry can proceed in your absence if you abscond.
Canadian Criminal Code
Form 7
Bench Warrant for arrest of absconding accused.

If you are absent from criminal court, the Crown will pressure the Judge to declare that you have absconded. This can and does happen even when your absence is legitimate, due to illness. If the Crown Prosecutor attempts this, you should report him or her to the Law Society of your province. But for immediate help, consider the arguments and precedents here:

Black's Law Dictionary defines abscond as: depart secretly or suddenly, especially to avoid arrest, prosecution, or service of process. The person must actively attempt to conceal oneself from the Department of Justice, or behave in ways designed to accomplish delay.

Over time, the Supreme Court of Canada forged a fair test for abscond, which requires these four elements: a deliberate intent to avoid legal proceedings; unknown whereabouts; unexplained absence; and access to wealth and high connections.

A DISABLED OR ILL PERSON DOES NOT MEET THE SUPREME COURT DEFINITION OF ABSCOND
Element Required
to Abscond
Rebuttal
Intention to Avoid Legal Proceedings Your intent is to be present in Court, not absent: Attending the proceedings is in your best interests: If self-represented, you must be present to argue the case yourself. If you retain an attorney, your presence in court is still required to help locate documents, to teach any gaps in the case, and to observe demeanor during the examination of witnesses: this is a constant feedback process.
Whereabouts Unknown Your location is always known: When you are too ill to attend Court, you are in your own residence and your current address is properly on file with the Court. Or you are in hospital or in a doctor's office, or being cared for by a relative or Care Aide.
Absence Unexplained Your absences are always explained: Your absence from court is not deliberate. It is due to serious physical illness, substantiated by medical reports from your family doctors and specialists.
Wealth and High Connections Your financial resources are far less than what it takes to abscond: Your sole financial support may be Worker's Compensation, a CPP Disability Pension or other pension, or Social Assistance. Those sources provide basic subsistence but seldom more.

Precedents:  Elements Required to Abscond

R. v. Garofoli 1990 SCC 52
In this landmark precedent, the Supreme Court defined abscond to mean voluntarily absent oneself from a trial for the purpose of frustrating a trial or avoiding its consequences. In this case, the trial was adjourned while inquiries were made as to the whereabouts of the accused. When it appeared that there was no explanation for his absence, a bench warrant was issued for his arrest. The trial judge made a finding that he had absconded and ordered that the trial continue in his absence.

R. v. Pearson 1992 SCC 52
The Supreme Court ruled: It is not an easy thing to abscond from justice. The accused must remain a fugitive from justice for the rest of his lifetime. The accused must flee to a country which does not have an extradition treaty with Canada. Alternately, the accused must remain in hiding. Either prospect is costly. Neither prospect is possible unless the accused is exceedingly wealthy or part of a sophisticated organization which can assist in the difficult task of absconding.

Your Right to Access the Justice System

A law enacted to bind all, should not have a more burdensome, or a less beneficial, impact on one person than another. But discrimination does impose burdens, obligations, or disadvantages on one individual that are not imposed on others.

Vézina and Côté v. The Queen 1986 SCC 93
The Supreme Court decided: The accused's right to be present at his trial means he has the right to have direct knowledge of anything that transpires in the course of his trial which could involve his vital interests. This obviously includes proceedings which are part of the normal trial process for determining the guilt or innocence of the accused such as arraignment and plea, the empaneling of the jury, the reception of evidence, rulings on evidence, arguments of counsel, addresses of counsel to the jury, and the judge's charge to the jury.

If a client cannot participate fully in Court, then that client is in an inferior position. That is subject to remedy: For example, a French-speaking client is assigned a French, not an English, judge. A deaf person is assigned a sign-language interpreter. And when a client is ill, neither should that disability be exploited. The Court sessions must be scheduled to allow and ensure the client’s presence.

R. v. Schneider 2003 NSSC 209
Parliament clearly intended any curtailment necessary … of the right of an accused to be present at trial, would be more limited for indictable offences than for summary offences.

R. v. Beaulac 1999, 1 S.C.R. 768
Mere administrative inconvenience is not a relevant factor. The availability of court stenographers, the workload of prosecutors or judges, the additional financial costs of rescheduling are not to be considered.

The Difference Between Mobility Restriction and Illness

Disability can mean: Mobility restriction; or physical disease and illness; or mobility restriction and illness combined in one person.

Mobility restriction: Such a person requires an aid for mobility. Consider a paraplegic who is wheelchair bound due to a car accident. This person may have perfect health other than paralyzed legs. The person can work, and is only limited by the need for elevators, wheelchair transportation, and extra time to perform some tasks.

Physical illness: Illness is usually more restrictive. It depends on the disease. Consider the CPP Disability Pension Plan: to qualify, a person must be disabled from working. That seldom means simple mobility restriction, because such a person can always do desk work. Under the CPP guidelines, disability typically refers to a physical disease.

A Judge or Prosecutor will grasp the difference better if you compare maladies which are temporary but common among the healthy population. Disease pathology is a mystery to most folk. Even justice officials find it taxing to unravel terms such as increased nodes of ranvier, glomerulations, or theta waves. A Judge may not have time, or may be unwilling, to learn how serious those diagnostic sign-posts are. In such a courtroom a Prosecutor will instinctively use ignorance of medical terminology to leverage the Crown's position. Thus at the outset offer some descriptions that are well understood:

Example of a common mobility restriction:  A man breaks his ankle skiing and needs crutches for a month, but otherwise remains healthy. He continues full-time with his desk job as an accountant. He is only slowed down in the area of mobility and transportation.

Example of a common physical illness:  A person develops a bad case of influenza, and is flat on their back with fever, sore throat, muscle aches, and weakness. The cough develops into pneumonia. That person is going to be off work for weeks.

At courthouses in Saskatoon, a wheelchair or scooter will not be what limits you. The Queen's Bench Courthouse is wheelchair accessible with a flat entrance at the back, an elevator, wide doorways, and proper restrooms. The Provincial Courthouse is similar, except you may use the front entrance since it is flat. Plain access is not the problem. The real problem is your illness, your diagnosed disease and the symptoms it produces. That will be the limiting factor for your attendance in court.

FURTHER READING

Georgena S. Sil
Saskatoon, Canada
Physicist & Technical Writer
Alumnus: University of British Columbia
TuumEstContact@protonmail.com

Copyright © 2008-2018 Georgena Sil. All Rights Reserved.