By Robert Lattanzio Executive Director, ARCH Disability Law Centre
In 2014, Canada submitted its first report to the United Nations Committee on the Rights of Persons with Disabilities. The Report’s very brief and random overviews of education related matters largely failed to consider the persistent ableist barriers that students continue to face while trying to access meaningful and inclusive education services in Canada. Article 24 of the United Nations Convention on the Rights of Persons with Disabilities (which Canada has ratified) is a clear mandate for inclusive education. It requires that countries that ratify the Convention ensure that students are not excluded.
Students must have equal access to education services and access to required supports and accommodations. Article 24 states that “Individualized support measures are provided in environments that maximize academic and social development, consistent with the goal of full inclusion”.
Canada’s report to the UN ultimately fails to articulate the pressing need for an overall national strategy on inclusive education. The Year 2016 offers us a fresh opportunity to press our governments for stronger efforts to implement Article 24.
The work that my office – ARCH – does in Ontario, on behalf of students with disabilities, often relates to discrimination and a violation of their human rights. Many of our cases involve the failure of school boards to appropriately accommodate our clients’ disability related needs. We continue to receive referrals and represent clients who are arbitrarily excluded from classes in their school. In some cases and even more concerning, they are excluded from school altogether.
The denial of access to education is a symptom of the overall failure to appropriately accommodate students. Failure to create inclusive learning environments all too often results in students across the Province of Ontario being denied education.
Often the basis for this exclusion is section 265(1)(m) of Ontario’s Education Act which provides the school principal with the power to exclude “a person whose presence in the school or classroom would in the principal’s judgment be detrimental to the physical or mental well-being of the pupils.” This provision arguably gives the principal the discretion to deny students with disabilities access to the school if they are perceived as being a safety risk.
Although there is a lack of concrete data to demonstrate the prevalence of this practice, there is more than ample anecdotal information. In addition to the calls that ARCH receives from students and families, we can draw on other information sources as well.
For example, in 2014, People for Education released the results of a survey, which found that almost half of all elementary school principals, and 40% of secondary school principals have at some point “recommended” that a student with a disability not attend school for at least some period of time. For the most part, principals reported that this widespread practice was related to safety concerns and/or the health of their students.
However, in a significant fraction of cases, the principals reported that a lack of appropriate support was a factor in this decision. Almost certainly in some cases, this lack of resources combined with discriminatory stereotypes about students with disabilities has contributed to the perception that they are a safety risk and has led to them being excluded from the school.
What makes this issue especially concerning is that these exclusions are not tracked by school boards in any appreciable way.
The reality in Ontario, as in many provinces, is that the legislative and regulatory frameworks in place are antiquated and are based on out-dated approaches to the practice of public education. A rights-based approach to education, such as that articulated by the Supreme Court of Canada in the decision of Moore v. British Columbia (Education) and a clear articulation of inclusive education, as expressed in the CRPD, need to inform and guide the development of new and relevant legislative oversight.
We do not need to search too far for guidance and inspiration, as New Brunswick’s new policy framework on inclusive education provides the rest of this country with a framework to foster a constructive dialogue moving forward. It is time to ensure inclusive schooling throughout Canada.
Roberto Lattanzio is the Executive Director of ARCH Disability Law Centre. Robert received his LL.B and B.C.L. law degrees from McGill University in 2003, and received his B.A. from Concordia University in 1999. He has been involved in test case litigation at different levels of court, including the Supreme Court of Canada, and has made law reform submissions to various levels of government, committees, and administrative bodies. Robert has presented and written on topics such as equality and human rights law, administrative law, education law, legislative reform, and social science evidence. Robert has a long-standing interest in disability issues and has volunteered with community organizations including serving as President of East York East Toronto Family Resources Organization.
Government of Canada, Convention on the Rights of Persons with Disabilities: First Report of Canada, 2014, online: http://publications.gc.ca/collections/collection_2014/pc-ch/CH37-4-19-2013-eng.pdf
UN GAOR, 61st Sess., 76th Mtg., UN Doc. GA/10554 (2006).
People for Education, Public Education: Our Best Investment, 2014, at 13, online: www.peopleforeducation.ca/wp-content/uploads/2014/06/annual-report-2014-WEB.pdf
2012 SCC 61,  3 S.C.R. 360, online: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/12680/index.do
New Brunswick Department of Education and Early Childhood Development, Inclusive Education: Policy 322, 2013, online: http://www2.gnb.ca/content/dam/gnb/Departments/ed/pdf/K12/policies-politiques/e/322A.pdf