Swimming up Niagara Falls! : the battle to get disability rights added to the Canadian Charter of Rights and Freedoms

In Swimming Up Niagara Falls!, David Lepofsky describes the campaign to include equality rights for people with disabilities in the Canadian Charter of Rights and Freedoms, and offers important lessons on the value of tenacity in legal practice and the critical importance of definitions in shaping policy and societal values.

Lepofsky highlights how legal and medical definitions and the attitudes they reflected, were not neutral but actively shaped policy, creating barriers and marginalizing individuals. These terms directly influenced discriminatory laws and societal perceptions:

• "Legally blind" was a problematic and misleading term that inaccurately implied total blindness, leading to harmful attitudinal barriers and low expectations from sighted individuals (p. 30).
• Terms like "mentally defective" or "mentally retarded" were used in legislation, directly precluding individuals from rights such as marriage licenses in Ontario in 1980 (p. 302). The Canadian Association for the Mentally Retarded (CAMR) later changed its name to reflect a shift towards more dignified language like "developmental disability" or "intellectual disability" (p. 134).
• The term "handicapped" was widely used, yet was associated with "begging for charity, cap in hand" (p. 134). This perception solidified the view of people with disabilities as recipients of aid rather than rights-holders. Lepofsky notes that the biggest problem was "the pity, the patronization, discriminatory attitudes and condescension" that were almost constant in their lives (p. 217). These attitudes were embedded in laws that allowed lower wages for people with disabilities, denied them jury service, or imposed higher burdens on immigrants with disabilities.

The initial exclusion of disability from section 15 of the Charter signaled who was deemed worthy of constitutional protection and who was not (p. 3). The proposed Section 15 explicitly listed other grounds like race, national origin, and sex, but omitted disability, which advocates feared would leave them "freezing in the constitutional cold" (p. 168). Lepofsky strongly argued that this exclusion perpetuated the notion of people with disabilities as "second class citizens" (p. 219) and rendered the Charter "meaningless to hundreds of thousands of handicapped Canadians" (p. 234). It implied a "first and second class of rights to protection from discrimination" (p.144).

This challenging context, stemming from the implicit devaluation of people with disabilities through exclusionary language, highlights the value of tenacity and a particular ethos in legal practice and social justice advocacy. Lepofsky's personal motto, "Uphill is where we live," captures this spirit (p. 10). The struggle was akin to "swimming up Niagara Falls" with "chances of winning... close to zero" due to the rushed constitutional process, scant media attention, and a lack of organized, technologically equipped disability advocacy (p. 2). Despite these odds, "foolish, unrealistic optimism" was crucial (p. 9).

This enduring mindset, born from the seemingly unwinnable fight for the disability amendment, has since fueled other significant legislative achievements, demonstrating that persistence, seizing opportunities, and unwavering optimism can indeed make the impossible possible. It also underscores the crucial lesson for legal practice: be mindful when using language, especially in legal definitions, as words are not neutral; they actively shape policy, values, and the realities of individuals' lives. Lepofsky's insistence on clear, explicit language in Section 15 ("If you want the law to guarantee something, say it! Say it clearly!") (p. 175) was a direct response to the harms caused by imprecise, or omitted, definitions.

Swimming up Niagara Falls! : the battle to get disability rights added to the Canadian Charter of Rights and Freedoms Lepofsky, M. David,  2024, Book , xvii, 414 pages; 1007000112, 1007000147, 9781007000118, 9781007000149