100% BAN OF INDOOR & OUTDOOR SMOKING
ON POST-SECONDARY EDUCATION CAMPUSES
ENABLING
ACCESS OF THE SMOKE DISABLED
Karen Elizabeth Ryan
University of Windsor Law - Year 1
karen.ryan@mail.com
ABSTRACT
In Ontario and Canada,
various legislation and agencies exist to protect human rights and
freedoms. These laws and agencies
collectively guarantee the rights of the disabled. They include: Ontario Human Rights Commission (OHRC), Canadian Charter of
Rights and Freedoms (Charter),
and, Ontarians with Disabilities Act
(ODA).
The OHRC has a Disability Policy, which
guarantees students with disabilities the ability to fully participate in
post-secondary education. The Ministry of Training, Colleges and
Universities (MTCU) stipulates
that disabled students have the right to access their school environment with
dignity and without hindrance.
Acknowledged disabilities not adequately protected are those who suffer
from severe smoke allergies, asthma or other related respiratory illnesses
(Smoke Disabled).
Petitioning for 100%
indoor and outdoor nonsmoking designations for post-secondary campuses would
make it easier to ensure OHRC and MTCU guarantees are effectively
implemented for the Smoke Disabled.
Such an initiative
should include two lobbying campaigns. First, to lobby school administrations
to implement policies and regulations.
Second, to lobby the Provincial Government to legislate 100% smoke free
indoors and outdoors educational campuses.
By lobbying school
administration to implement policies, it is possible to expedite the ultimate
goal. Even if only some campuses
introduce a partial restriction on outdoor smoke, it will begin the process and
help in demonstrating the rights of the Smoke Disabled.
Petitioning the
Provincial Government to develop ‘on point’ nonsmoking legislation, ensures a
permanent, long-term solution is created.
Thus, ensuring the constitutionally protected rights of the Smoke
Disabled are protected allowing access to education free from this terrifying
barrier.
Even when severe
attacks do not completely prevent their attendance, mild symptoms can make
schoolwork difficult. Being forced to
spend a significant amount of time having an attack and recovering from it,
creates further disadvantages due to reduced studying time. This compounds the disadvantage they have
from not being able to consistently attend classes.
Designating a building
as smoke-free does not prevent smoke from entering the building. Generally and especially during inclement
weather, smokers maintain a very close proximity to building entrances. Smoke flows into the building when doors are
opened. In some cases gaps in doors
provide a constant stream of smoke into the building. With smoke in the building, an allergic
individual can have a severe attack simply by being present.
Walkways and entrances
are common smoking hangouts. Walking
across campus between buildings is something taken for granted by thousands of
students every day. For the Smoke Disabled,
it can be a terrifying and embarrassing experience as they are forced to pick
their way across campus, often forcibly segregated from their peers.
Sometimes entering a
building can be impossible due to the ring of smokers tightly surrounding the
entrances. Not being able to walk
through the doors creates a situation contrary to the MTCU guarantee for
disabled post-secondary education access with dignity and without
impediment.
A 100% smoking ban on
all post-secondary campuses, inside and outside, would empower the Smoke
Disabled in pursuing education. Smoke
would not enter the buildings and smokers would not have as much chemical
residue on their clothes thanks to the smoke free walk across campus. This would work towards ensuring access
rights of the Smoke Disabled are effectively addressed.
The Ontario Government
introduced a bill, in December 2004 to make all workplaces and indoor public
spaces 100% smoke-free. Already many
municipalities have enacted by-laws restricting indoor smoking. Given that Ontario’s current political
climate leans strongly in favour of nonsmokers’ rights, it would be a good
jurisdiction in which to attempt this initiative.
The Ontario government
has also introduced a bill to enhance the current protection afforded to
persons with disabilities. This bill
would strengthen the requirements for all barriers to be removed.
Although there will be
some opposition, reluctance to support nonsmoking legislation and policies
stems from misunderstanding or ignorance of the potential effects. The key to cooperation lies in launching an
educational campaign across campuses, including campus ads, a web presence and
public speaking engagements.
Second hand smoke
dangers and the long-term effects of exposure are often postulated. However, far less is done to advance the
immediate life threatening effects when an allergic person is exposed. The campaign would focus on understanding the
need some face for smoke free air akin to the need some have for wheelchair
access. The longevity of chemicals
clinging to clothes and walls would also be addressed. Moreover, it is important to provide access
to information which can help smokers quit.
In the writer’s case,
an administration headed campaign to educate and seek cooperation was not
adequately successful in restricting smoking. However, when I began speaking to classes and
explaining the dangers and difficulties I faced, voluntary cooperation
dramatically increased leading to drastically improved school access and
overall health.
Successful petitioning
for nonsmoking campuses in Ontario could be persuasive in other jurisdictions
with similar disabled rights protection legislation and policies. It would also serve as an example of
societal and governmental responsibility to adequately and meaningfully protect
disabled rights, thereby advancing disabled rights in general.
Those who suffer
disabling effects from exposure to smoke should not be segregated and offered
inadequate access to education. They are
deserving of the same access protection that is afforded to individuals with
other disabilities. Designating
post-secondary education campuses as 100% smoke free, indoors and outdoors,
will significantly improve access to education and help advance the overall
mission to protect nonsmokers from exposure.
INTRODUCTION
In Ontario
and Canada, various agencies and legislation exist to protect human rights and
freedoms, thereby collectively guaranteeing the rights of the disabled. “The search for happiness and health is a
fundamental human aspiration and, in a society with a sense of community among
its members, disabilities concern all human beings, not only the disabled
individual.”[1]
Education
is central to the life of an individual in the community. It provides opportunities for personal,
social, and academic growth and development.
It sets the stage for later life experiences, most especially in
employment. It is also an important
venue for integration into the life of the community.[2]
Education
is an international human right essential to the life of an individual and to a
community as a whole. Education provides
opportunities for personal, social and academic development and is important
for future employment and integration in society. …In Canada, education is
recognized and legislated as a fundamental social good. A publicly funded education system,
accessible to all, is recognized as a core responsibility of government.[3]
DISABILITY
Definitions of Disability and Handicapped
The definition of “disability” is
broad. Disability can manifest in many
different ways, including non-visible. A disability may be mild or profound,
temporary or permanent. In Canada, chronic conditions account for 87% of
disabilities.[4] [5] [6]
In Canada, the disability standard
is met if the condition restricts one’s ability to perform common activities
such as attending school, walking, or communicating. This social perspective
incorporates how persons with disabilities are restricted in performing daily
tasks due to multiple factors pertaining to the person and their physical and
social environment.[7]
Social / Environmental Concept of Disability
The social/environmental concept
looks at the effect of barriers imposed by society, both physical and
attitudinal. The World Health
Organization International Classification
of Functioning, Disability and Health, defines disability as including
“externally imposed impairments, activity limitations or participation
restrictions.”[8] The barriers created by the attitudes of
others, must be addressed to help promote full integration and participation
for persons with disabilities.[9] Often it is the barriers, not the condition
that is the disabling agent. We need to
view disability in its social and physical contexts, the overall environment
around the person.[10]
The Supreme Court of Canada has
dictated that emphasis must be placed on human dignity, respect and equality
rights, and that the societal attitudes often contribute to the
‘handicap’. In fact a person may have no
limitations in everyday activities other than those created by prejudice and
stereotypes.[11] [12]
Disability and Handicap
Disability is typically seen as an
individual’s personal characteristic that restricts ability. Disability is any
physical disability, infirmity, or disfigurement caused by injury, defect or
illness. It may be permanent or
transitory in nature.[13] [14] [15]
In contrast, handicap is a limiting
disadvantage imposed through interaction with the external environment around
the person. [16] Handicaps are factors that limit community
participation on an equal level with others.
It describes the encounter between the person with a disability and the
environment. This term focuses on the
shortcomings in the environment, which prevent persons with disabilities from
participating on equal terms.[17] [18]
Non-Evident Disabilities
Some types of disabilities may be
episodic, have non-visible effects, or manifest differently depending on the
environment. For sufferers of
disabilities such as environmental sensitivities or asthma, achieving
accommodation can be difficult because the authenticity of inconsistent or
non-visible symptoms may be doubted. Education and awareness are critical in
combating the discrimination faced by students with non-evident disabilities,
this problem highlights the importance of a strong administrative and
governmental stance to protect the Smoke Disabled.[19]
The “Smoke Disabled”
Asthma, allergies and environmental
sensitivities are formally recognized disabilities. The common element to all
three is a reactive nature to the environment.
These reactive disabilities also include other respiratory and
immune-deficiency conditions.[20] [21] [22]
The symptoms associated with these conditions are often unstable and
unpredictable and may be episodic.[23] These disabilities may affect energy level
including listlessness or severe fatigue, attention, memory and concentration,
chronic pain, and frequent secondary illnesses due to a compromised immune
system.[24]
Allergies and asthma are the most
prevalent of all chronic diseases, affecting millions of people every day. Although
some allergens are more dangerous than others, it is important to keep in mind
that all allergens pose negative limits on a person’s quality of life. Asthma is a chronic respiratory system
disorder characterized by variable airflow limitation and airway
hyper-responsiveness to a variety of triggers.
The environment has a significant impact on the asthmatic condition so
environmental control is critical to the proper care of asthma and is
preferable to mere symptomatic treatment alone.[25] [26] [27]
Environmental Sensitivities or
Multiple Chemical Sensitivities can arise after intense, ongoing or cumulative,
exposure to chemicals or irritants. Once
a person become sensitive, they may become ill with a range of disorders. Frequency and severity of symptoms are
worsened by subsequent exposures to a wider range of chemicals and irritants,
even at very low doses.[28]
Those who suffer from reactive
disabilities such as severe smoke allergies, asthma and/or other respiratory or
environmentally induced illnesses, the “Smoke Disabled,” are currently not
adequately protected. A focus on asthma
and allergies will be used in examining the devastating effects that exposure
to second-hand smoke may cause.
ASTHMA
Asthma in Canada
“Canada has one of the highest
asthma rates in the world.”[29] Over 2.2 million Canadians have been
diagnosed with asthma (42.2% of children and 6.3% of adults). An estimated 10% of children and 5% of adults
have active asthma.[30] Every year approximately 20 children and 500
adults die from asthma.[31]
In
Canada, 6.1 % of all adults aged 20-34 have asthma and 11.4% of teens aged
15-19 do as well.[32] This directly demonstrates that this is a
serious concern for the typical post-secondary aged students.
Importance of Asthmatics Avoiding Triggers
Asthma is caused primarily by
environmental factors that, by their nature, are largely preventable. Historically, more emphasis has been placed
on treatment of the condition than prevention.
It is believed that significant progress could be made toward
controlling the incidence of asthma by reducing exposure to environmental
factors.[33]
Allergen exposure can increase asthma symptoms and may lead to death, controlling and avoiding asthma triggers is important. With greater allergen exposure comes increased airway hyper-responsiveness, making reactions to all triggers more severe. Increasing medication or immunotherapy should not replace avoiding exposure to environmental allergens. A supportive environment is critical for the effective avoidance of triggers beyond personal control and helps maximize the quality of life. [34]
Passive Smoke: The Number One Substance Trigger
The number one substance trigger
for asthma in Canada with an incidence rate of 64.1% of asthmatics is passive
smoke. Even general air pollution trails
at 48.1%. [35]
According to Canada’s National Population and
Health Survey Asthma Supplement, “42% of individuals with active asthma are
exposed to passive smoke most days. The
community as a whole needs to become involved, therefore, in the reduction of
smoke and other allergens in the air.
This will require increasing the level of awareness in the general
public about the danger of environmental tobacco smoke (ETS) and the need for
legislation and policy changes.”[36]
Clearly it is in the best interests
of asthmatics to help them avoid passive smoke.
ONTARIO LEGISLATION & GOVERNANCE
Currently, Ontario’s most relevant
legislations are; the Ontario Human
Rights Code (Code), and the Ontarians with Disabilities Act (ODA).
Two recently introduced Bills, one pertaining to disabled access and the
other pertaining to smoking, will have a significant impact should they become
law as anticipated.
The Government of Ontario is
committed to continue working with every sector of society to build on recent
advancements and to progressively move towards a Province in which no new
barriers are created, and existing ones are removed.[37] [38] In the fight against tobacco, the removal of
smoking from inside buildings has unwittingly erected a new barrier in prolific
smoking around building entrances. This
new barrier must also be removed.
Ministry of Training, Colleges
and Universities (MTCU)
The Ministry of Training, Colleges and
Universities (MTCU) is
responsible for post-secondary education in Ontario. The MTCU
stipulates disabled students have the right to access their school environment
with dignity and without hindrance. The MTCU has established a Post-Secondary Advisory Committee on
Disability Issues to advise the Minister on education issues affecting
post-secondary students with disabilities. [39] The Smoke Disabled
are being denied this right when smokers congregate, especially near entrances.
Ontario Human Rights Code
(the Code)
The Code
stipulates as public policy: the recognition of
the inherent dignity and worth of everyone and the requirement to
provide for equal rights and opportunities without discrimination. The Code aims at creating a climate of
understanding and mutual respect for the dignity and worth of each person. The Code
protects the rights of persons with disabilities to equal treatment and against
the unequal effects of discrimination, setting out that everyone should be a
contributing part of the community. The Code
guarantees for equal treatment, apply to education, including public and
private post-secondary education institutions. The Code further stipulates that each person
must feel a part of the community and the Province.[40] [41] [42]
Section 1 of the Code is dedicated to Equality Rights and
Freedom from Discrimination, stating:
Every person has a right to equal
treatment with respect to services, goods and facilities, without
discrimination because of race, ancestry, place of origin, colour, ethnic
origin, citizenship, creed, sex, sexual orientation, age, marital status,
same-sex partnership status, family status or disability.[43]
Education, is a ‘service’ within
the meaning of the Code, as shown in Peel
Board of Education v. Ontario Human Rights Commission.[44] The scope of educational services at the
post-secondary level focuses on: the mastery of knowledge; academic standards;
evaluation; and accreditation.[45]
Section
11 interprets disability broadly and clarifies the inclusion of constructive
discrimination as a prohibited discrimination.
Constructive discrimination is subjecting someone to something that
appears neutral but has the effect of disadvantaging.[46]
[47] [48]
Section 29 of the Code empowers the Ontario Human Rights Commission (OHRC) to oversee effective
operation, promotion and adherence of the Code
and its objectives.[49] [50]
In resolving complaints, the Commission
is empowered to issue orders for compliance as well as monetary restitution.[51]
The Code prevails over all other Ontario statutes and applies to
various social interaction in both the private and public sector. However, the OHRC has repeatedly encountered a private sector lack of awareness
or commitment to the rights of persons with disabilities, specifically to
inclusion and full participation.[52] [53]
Ontarians with Disabilities Act
(ODA)
The purpose of the ODA is to improve opportunities for persons
with disabilities, including involvement in identifying, removing and
preventing barriers to enable their full participation in society.[54] The ODA
“affirms the existing legal obligations of the Government of Ontario respecting
people with disabilities under the Ontario Human Rights Code, which retains
primacy.”[55] The ODA
is applicable to all universities and colleges in Ontario, which receive
Government of Ontario operating grants.
Accordingly these institutions are responsible for preparing an accessibility
plan each year in consultation with persons with disabilities.[56]
The plan should identify the full
range of access barriers including physical, communications and attitudinal
barriers related to all programs, services, practices, policies and bylaws of
the school. Solutions must ensure
effective and efficient processes, resulting in meaningful change.[57] [58]
EDUCATION REVIEWS AND REPORTS
Various reports and reviews have
examined the provision of education to students with disabilities in Ontario. Their collective objective is to advance the
realization of fulfilling the needs of students with disabilities.
Education
and Disability: Human Rights Issues in Ontario’s Education System (Education
and Disability)
In Education and Disability the key policy
positions of the OHRC are laid out
and include:
The Opportunity to Succeed:
Achieving Barrier-Free Education for Students with Disabilities
This report looks at human rights
issues that arise in the provision of education to students with disabilities,
outlining actions required by parties to promote compliance with human rights
law and policy. The findings indicate
that many students with disabilities do not have equal access to post-secondary
education in Ontario. Among the key barriers identified are negative attitudes
and stereotypes, physical inaccessibility, and a lack of understanding of the
rights and responsibilities of all parties under the Code and OHRC policy.[61]
Ontario Human Rights Commission
- Guidelines
on Accessible Education (Guidelines)
Released in 2004, the Guidelines aim to promote full inclusion
and participation with dignity and without impediment.[62] Its aim “to support students with
disabilities in the fulfillment of their right to access education services
[and] to support education providers in meeting their responsibilities under
the OHRC.”[63] The Guidelines
examine human rights issues in the provision of education to students with
disabilities and outline required actions for compliance with the Code and OHRC policies.[64] Policies and programs, must be designed
inclusively in all school related activities, so as not to exclude or single
out any student.[65]
Ontario A Leader In Learning:
Report & Recommendations (Report)
Released in February 2005, the Report is a review of post-secondary
education in Ontario with an aim for increasing value and success. The Report calls on the province to develop
clear strategies to overcome accessibility barriers. An excellent postsecondary
education system, providing opportunities for all the people of Ontario, is
essential for a competitive and prosperous society.[66] Part of the overall objective of the Review is “improved awareness and
sensitivity to the needs of students with disabilities on college and
university campuses.”[67]
NEW PROPOSED ONTARIO LEGISLATIONS
The Government of Ontario believes
that all governments of Canada have a responsibility to enact legislation to
improve opportunities for persons with disabilities by comprehensively
identifying, removing and preventing barriers to their participation in the
life of the jurisdiction of those governments.
The Government of Ontario believes that it is desirable to demonstrate
continued leadership in improving opportunities for persons with disabilities.[68]
Ontario Needs Stronger Legislation
“One and a half million people in
Ontario today have disabilities. They
are faced with many kinds of barriers, which prevent them from participating
fully in economic, social and cultural life of our province.”[69] “Voluntary measures to get rid of these
barriers have been tried for years, and have not been effective: the barriers
continue to create difficulties for people with disabilities in so many aspects
of their lives.”[70]
Bill 118 – Accessibility for Ontarians with
Disabilities Act proposal
Bill
118 seeks to ensure that persons with disabilities are able to participate
as full citizens in all aspects of life in Ontario, including education. This vision can be realized through
enforceable standards that establish what is required by both the private and
public sectors. The overall objective is
a truly accessible Ontario for all.[71] [72]
Bill 118 is a significant improvement over the ODA, particularly because it extends to the private sector.[73] As the OHRC has seen, the private sector often is rife with a lack of understanding or care for the rights of persons with disabilities. The inclusion of the private sector in this legislation is essential to advancing the rights of persons with disabilities. [74]
Comprehensive accessibility
standards to remove barriers and achieve full inclusion will be the result of
work between persons with disabilities and the service providers. This
partnership approach can lead to more effective and truer inclusiveness than
the disjointed approach currently found in the ODA .[75] [76]
Bill 164 – Smoke-Free Ontario Act proposal
The proposed Bill 164, intended to take effect on May 31, 2006, would replace
the current tobacco control legislation in Ontario. Bill
164 is a statement of Ontario’s commitment to protect all Ontarians from
exposure to second-hand smoke.
The legislation will prohibit
smoking in all workplaces and enclosed public places, including: restaurants;
bars; schools; private clubs; healthcare facilities; sports arenas;
entertainment venues; work vehicles; parking garages; and offices. The
key to determining whether a structure is an ‘enclosed public place,’ is the
existence of a roof, thereby including pavilions. The definition of private dwelling is strictly
limited to places primarily used as a residential home.[77] [78]
CANADIAN LEGISLATION & STRATEGY
Canadian human rights legislation
is depicted as anti-discriminatory with ‘quasi-constitutional’ status and
superceding all other laws. A purposive interpretation of the legislation
is vital for the effective protection of rights. Accordingly, legislations are to be read
broadly and defences seeking to curtail rights are to be read narrowly.[79]
The Canadian legislations and
strategy most relevant for this endeavour are: The Canadian Charter of Rights and Freedoms (the CCRF), the Canadian Human
Rights Act (CHR Act) and the Federal Tobacco Strategy.
Canadian Charter of Rights and
Freedoms (the Charter)
Canada was the first country in the
world to expressly guarantee equality for its citizens in a Constitution. The Charter
guarantees equality and the right to life, liberty and freedom of the
person.[80] [81] According to the Supreme Court of Canada, the
meaning of equality is fundamentally the same under human rights codes and the Charter.[82] [83] The purpose of equality guarantees in the
Charter is strictly intended to provide relief from disadvantage for the
identified groups such as persons with disabilities.[84] [85] [86]
Without unimpeded access to
education, the Smoke Disabled have their constitutionally guaranteed equality,
life, liberty and security of the person infringed and threatened.
Being prevented from adequate
access to post-secondary education, compromises the basic liberty right to
choose and pursue one’s chosen occupation.
Canadian Human Rights Act (CHR
Act)
Overseen by the Canadian Human Rights Commission (CHRC), the CHR Act establishes that every person has equal rights and
opportunities to create a fulfilling life for oneself and prohibits
discrimination on a number of grounds, including disability.[91] [92]
Federal Tobacco Control Strategy
(FTCS)
The key objective of the FTCS is to reduce disease and death
attributable to tobacco. [93] It incorporates multiple measures to affect
its objectives.[94] [95] The FTCS
recognizes the key to success is comprehensive, integrated and sustained
efforts, in collaboration with the provinces, territories and other relevant
parties, The provincial and territorial Ministers of Health are committed to a
collaborative effort under the FTCS
to combat the dangers of tobacco.[96]
POLITICAL & SOCIAL CLIMATE
The
social and political climate of Canada and Ontario suggests strong support for
the removal of barriers faced by persons with disabilities.
Social Values
Fundamental Canadian social values
include: respect, fairness, generosity, and caring.[97] The people of Canada and Ontario support the
right of persons with disabilities to: equal opportunity; full participation in
society; and the achievement of their fullest potential for skills and
knowledge. Most feel the social benefits
are worth the expense of removing barriers and that to do so is in keeping with
our value of compassion for others.[98] [99] [100]
As a caring society, we have an
obligation to ensure that all vulnerable members of our society are guaranteed
access to services, supports and accommodations to help them overcome the
negative impacts of their vulnerability.
When it comes to providing an enabling education to students with
disabilities, it is society’s obligation to help them progress towards
independence and a reduction of their vulnerability.[101]
With the
emergence of the disability rights movement, persons with disabilities are
actively seeking progressive solutions to education barriers and human rights
violations.[102] [103] Education is highly valued and
everyone has the right to develop to his or her full potential. Learning is seen as allowing us to develop
and grow. To be educated in a given body
of knowledge or a skill is an indispensable part of Canadian values.[104]
Political Values
Prime Minister Paul Martin has
stated that good government is about enabling citizens to take charge of their
lives with the freedom to remove barriers to foster opportunity.[105] [106]
Canada wants “a Canada where
everyone has the opportunity for post-secondary education.”[107] “In Canada,
education is recognized as a fundamental social good. A publicly funded education system,
accessible to all, is recognized as a core responsibility of government.”[108] Education is among the Government’s
highest priorities for all Canadians, but particularly for people with
disabilities.[109]
According to the Governor General
of Canada, the most fundamental role of government is the protection of
citizens by way of safeguarding their health, beginning with a reduction in
incidence of avoidable disease. [110] Health Canada’s mandate to identify and
protect Canadians from environmental health hazards such as air pollution, is
poised to significantly aid in fulfilling this role.[111]
Overall, improving health leads to stronger social foundations and advances
Canada’s commitment to promote full, active and meaningful participation for
all its citizens.[112] [113]
INTERNATIONAL REGUALTIONS AND TREATIES
International
human rights highlight the importance of: education; full participation; and
enjoyment of life for persons with disabilities. Conventions, declarations and treaties of the
United Nations and the World Health Organization consistently support
fundamental human rights.[114] [115] The two most relevant to the subject being
examined are: the United Nations
Declaration of the Rights of Disabled Persons; and the World Health Organization’s Framework Convention on Tobacco Control.
United
Nations Declaration of the Rights of Disabled Persons (DRDP)
Canada
has ratified the United Nations DRDP,[116]
which was proclaimed in 1975.[117] The intention of the declaration was the
reaffirmation of “faith in human rights and fundamental freedoms and in the
principles of peace, of the dignity and worth of the human person and of social
justice proclaimed in the [United Nations] Charter.”[118]
Persons
with disabilities have the inherent right to respect for their human dignity
and have the same fundamental civil and political rights as their fellow-citizens.
Specifically, the right to enjoy a normal life that is as full as
possible. They are also entitled to have
their needs considered at all stages of social planning, including: an
entitlement to participate in all social, or recreational activities; to be
protected against all discrimination or mistreatment; and the right to
education to their maximum potential.[119]
[120]
[121]
World Health Organization Framework
Convention on Tobacco Control (FCTC)
The World
Health Organization’s FCTC is a
global anti-smoking treaty and is the first-ever global public health
treaty. [122] Developed in
response to the globalization of the tobacco epidemic,“ [123] the FCTC
came into force in February 2005.[124]
Including Canada, where it is
viewed as coherent with domestic efforts, only 57 of the original 168
supporting countries have actually ratified the FCTC.[125] [126] The Ministers of Health in Canada’s Provinces
and Territories have all expressed their support.[127] Parties to the FCTC are encouraged to implement stricter measures that go beyond
those expressly required.[128]
The FCTC is consistent with the Constitution of the World Health Organization and reaffirms the fundamental right of all people to enjoy the highest attainable standard of health. The principle objective of the FCTC is protection from devastating health, social, economic and environmental consequences of tobacco consumption and exposure to tobacco smoke.[129] [130] [131] The treaty has the potential to “improve the health and well-being of millions of people around the world”[132] through “protection from exposure to tobacco smoke in indoor workplaces, public transport, indoor public places and, as appropriate, other public places.” [133]
ACCOMODATION
Definition of Accommodation
The
Supreme Court of Canada has ruled that the objective of accommodation is
facilitating abilities in persons with disabilities to eliminate their
disadvantages.[134]
[135]
[136]
Accommodation
is a means of preventing and removing barriers that impede students with
disabilities from participating fully in the educational environment in a way
that is responsive to their own unique circumstances. The principle of accommodation involves three
factors: dignity, individualization and inclusion.[137]
[138]
Accommodation
with dignity is a fundamental and integral part of an inclusive Canadian
society, which recognizes the right to equal treatment.[139]
“Accommodation has the effect of
leveling the playing field” [140]
for persons with disabilities. Without
accommodation, persons with disabilities would be discriminated against and
face significant disadvantage. The
Supreme Court of Canada and the Canadian Human Rights Tribunal described
accommodation as that which is required in a situation to avoid discrimination.[141]
[142]
[143]
Accommodation of students with
disabilities at the post-secondary level is governed by the Charter and provincial human rights
statutes.[144] [145] Accommodation refers to the personalized
adaptation of tools and processes to overcome barriers faced by persons with
disabilities.[146]
The Duty To Accommodate
Canadian
and Ontario laws recognize the importance accommodation poses for
equality. The legal duty to accommodate
works to facilitate equality of access as required by integration and
participation guarantees. These laws
ensure maximum protection of the dignity and worth of the individual by
enabling people to feel and be full and equal participants in society.[147] [148]
According
to the Duty to Accommodate, the needs of persons with disabilities must be
considered and respected. Barriers must
be removed whether they are physical, systemic, or attitudinal.[149]
The Supreme Court of Canada stipulates
everyone governed by human rights legislation has a duty to accommodate the
characteristics of persons with disabilities in their practices, rather than
maintaining discriminatory practices supplemented by accommodation.[150]
[151]
The three
key principles in the duty to accommodate are:
Responsibility for Accommodation
The
responsibility for accommodation is shared among members of the educational
institution, government officials and students, who must work together
responsibly to ensure all students have the opportunity to reach their full
potential. Students with disabilities should have the
discretion to manage and direct their own accommodation needs as they see
appropriate but the ultimate responsibility to ensure the accommodation occurs
remains with the educational institution.[153]
[154]
Post-secondary
institutions are responsible for ensuring that their facilities and services
are accessible; that the environment is welcoming and non-discriminatory; that
appropriate, effective and dignified accommodation processes are in place; and
that students who require accommodations because of their disabilities are
accommodated to the point of undue hardship.[155]
“Wherever
you live, we all share a collective responsibility for supporting people with
disabilities. Local priorities may vary,
but the importance of the cause is worldwide.”[156]
Appropriate Accommodation
The
Supreme Court of Canada and human rights standards dictate that accommodation should
be provided in a manner that most respects the dignity of the person. This applies to the substance and process of
accommodation as well as the student’s participation in the process. Personal dignity is undermined when
individuals are marginalized, stigmatized, ignored or devalued. The aim
throughout the accommodation process is to efficiently ensure accessible
inclusion, integration and full participation to the point of undue hardship.[157]
[158]
[159]
[160]
[161]
Timely provision of effective
accommodation is critical as delays in educational opportunities can have
serious and permanent effects. [162] [163] In some instances, students have been forced
to miss substantial amounts of school time due to inadequate and/or
inappropriate accommodations.[164] Unreasonable delays
indirectly bar access and breach the duty to accommodate. [165] [166]
Accommodation
requires barrier-free and inclusive designs and the removal of existing
barriers. A barrier-free environment
means persons with disabilities should be able to access their environment with
dignity and free from impediment.[167] Persons with disabilities should have the
opportunity to enter a building in a manner that is as convenient and pleasant
for them as it is for others.[168]
The appropriate accommodation to be implemented is the one that best: respects the dignity of the student; meets his or her needs; promotes integration and full participation; and ensures confidentiality. Appropriate accommodation results in equal opportunities, benefits and privileges experienced by others.[169] [170] [171] [172]
Undue Hardship Standard
The standard of undue hardship is
very high and applies whether accommodation is for one or many people. Only
three factors can be considered:
The onus of proof is on the person
claiming undue hardship. The evidence to substantiate the claim must be
objective, real, direct, and where possible, quantifiable. Several factors
often raised that are expressly not applicable include: business inconvenience,
impact on morale, customer preference, and collective agreements. [173] [174] [175]
Where the most appropriate
accommodation cannot be provided right away, education providers have a duty to
provide for interim accommodation as the next best and timely solution while
planning for a more appropriate and permanent solution. In the meantime, this will enable students to
be as productive and involved as possible.[176]
The consequence of not being provided
with accommodation will be, for persons with disabilities, some form of social
exclusion, which is a condition of inequality. … Social exclusion is inconsistent with
political and legal values that have developed in Canada over the past century.[177]
Undue
Hardship is by definition: exceptional, excessive or disproportionate hardship.[178] The term ‘undue’ has been viewed by the
Supreme Court of Canada as “improper, inordinate, excessive or oppressive” or
to express “a notion of seriousness or significance” and it must be looked at
in its context it can be useful to assess the consequences or effect if the
undue thing is allowed to remain in place.[179]
Accommodation Planning
Costs of
accommodation must be distributed as widely as possible within the institution
responsible for accommodation so that no single school, or academic department
is disproportionately burdened with the costs of accommodation. The appropriate basis for evaluating the
costs is based on the budget of the institution as a whole, not the school, or
academic department in which the student with the disability has requested an
accommodation.[180]
Accommodation planning helps
organizations think strategically about barrier removal and prevention of new
barriers. The process will enable
organizations to integrate objectives for accessibility into their existing
corporate, strategic and other planning exercises.[181]
Test for if Accommodation duty has been met
The
Supreme Court of Canada has a framework for determining whether the duty to
accommodate has been met.
If prima
facie discrimination is found to exist, the person responsible for
accommodation must establish on a balance of probabilities that the standard,
factor, requirement or rule:
1)
was adopted for a purpose or goal that is
rationally connected to the function being
performed;
2)
was adopted in good
faith, in the belief that it is necessary for the fulfillment of the purpose or
goal; and
3)
is reasonably
necessary to accomplish its purpose or goal, in the sense that it is impossible
to accommodate the claimant without undue hardship.[182]
[183]
Failure to Accommodate is Discrimination
According
to the Supreme Court of Canada, failure to accommodate will be considered to
constitute discrimination on the basis of disability. [184]
[185]
In Brock v. Tarrant Film Factory Ltd., the
Ontario Board of Inquiry (Human Rights Code) made a finding of direct
discrimination of the basis of handicap where a person with a disability was
subjected to demeaning entrance requirements and limited use of the facilities. Tarrant Film’s view that accommodation was
not a priority was seen of no legal influence; and an order was made to
immediately effect the accommodation (working in consultation with Brock) as
well as monetary compensation.[186]
In the University of British Columbia v. Berg, the Supreme Court of Canada
found that education is a public service and that every service has its own
public and once that public has been defined by eligibility criteria, human
rights legislations prohibit discrimination within that public. Accordingly, a public relationship exists
between a school and its students.
Discrimination will be found where a person with a disability is
subjected to incomplete access contrary to what is customarily available to the
public of the school. Without this
protection, academic institutions would be able to admit students free of
discrimination and then deny the accommodations required to make their
admission meaningful.[187]
Accommodation For the Smoke Disabled
For this accommodation proposal
there are no costly structures to be built.
The physical modification requirements would be to remove existing
ashtrays and post signage. The critical
undertaking for this proposal would be educating and informing the campus
community. Compliance would be enforced
through the campus police.
Permitting smoking on a campus places an undue burden on those who need protection. Anything less than a 100% ban of indoor and outdoor smoke will continue the threat to the Smoke Disabled students as it places them at the mercy of wind and human nature. Smoking has no connection to the essential post-secondary education function of learning. Accordingly, there is no fundamental need or reason not to ban smoking and there can be no successful claim of undue hardship in meeting this accommodation.
ACCESSIBLE EQUALITY
Accessibility Definition
“Accessibility simply refers to
things, buildings, information and technologies that are usable by individuals
with disabilities. [188] The
accessibility of one’s environment often determines the real impact of a
disability.[189] Accessibility encompasses physical
accessibility, accessible curricula, and the necessary supports and
accommodations, to ensure students with disabilities have equal opportunity in
their education.[190]
Accessible Education
At its core, equal treatment in
education for persons with disabilities involves equal access to educational
opportunities.[191] “At a minimum, successful participation in
learning for students with disabilities means attending school.”[192]
The OHRC has cited the British
Columbia Council of Human Rights ruling in Howard v. University of British Columbia as harmonious with Ontario
requirements. The ruling expressly
required the University to provide a student with a disability with
accommodation required by the student to enable the access of the University’s
educational services, and that the provision of such services would not cause
undue hardship.[193]
Accessible education is met when
students with disabilities can access the school environment with dignity and
without impediment. Accessibility
includes physical accessibility, and the provision of necessary supports and
accommodations, which ensure students have equal opportunity to obtain their
education.[194]
Equal Rights
“The principle of equal rights implies
that the needs of each and every individual are of equal importance, that those
needs must be made the basis for the planning of societies and that all
resources must be employed in such a way as to ensure that every individual has
equal opportunity for participation.”[195]
The Supreme Court of Canada ruled in Eldridge v. British Columbia that when
services are provided (such as education) an obligation exists to take positive
steps necessary to ensure persons with disabilities have an equal benefit from
services.[196] [197]
Ensuring that the various systems and services of society and the environment are made accessible to all, particularly to persons with disabilities, effects an equalization of opportunities. [198]
VALUE OF EDUCATION
Education is valuable for inspiring
innovation and engaging participation to advance society. It is the foundation for opportunity in
Ontario as the only public policy which synthesizes economic and social values.[199]
Post-secondary
education among persons with disabilities aged 16-34, is the most dramatic
indicator of gainful employment.[200]
Persons with other disabilities
have higher rates of asthma than their non-disabled counterparts. One-quarter of people aged 12 to 24 with
other disabilities also have asthma.[201]
Someone who has other disabilities as well as asthma, risks a negative impact
on their other conditions as well when subjected to an asthma attack, thereby
further impeding the student in pursuing his or her education. Consequently, a smoke-free campus, in
addition to the obvious Smoke Disabled protection, would also protect many
students from compounded effects on their other disabilities.
THE CRISES OF THE SMOKE DISABLED
Currently,
for the Smoke Disabled, accessing a post-secondary education can be humiliating
and sometimes impossible. They may be
perceived as merely fussy or not having a life-threatening disability. They are often singled out and forcibly
segregated from their peers and many are not aware of or offered assistance.
Smoke is an Immediate Threat to the Smoke Disabled
Second
hand smoke dangers and the long-term effects of exposure are often postulated
but far less is done to advance the immediate life threatening effects when an
allergic person is exposed.
While it
is important to continue publicizing and fighting the damaging effects
long-term second hand smoke exposure can bring, it is not enough. Every day, people with asthma and allergies
are severely restricted in their freedom to utilize places of public purpose.
The Smoke Disabled are certainly
subjected to distressed and impaired functioning. By constantly being forced to scan the
environment around them out of fear for their life, they are forced to maintain
an unduly high level of being ‘mentally on’.
Anger and depression are associated with being forced into this
position, which is certainly an alteration of mood. Their behavior is altered from the norm. The emotions connected to their suffering and
impairment, especially knowing it is caused by the selfishness and/or ignorance
of others, are a significant mental health burden to bear. All of this comes together to affect their
school; work; social; and family interactions.
In fact the Smoke Disabled may feel
disconnected form the social environment of their school, an important aspect
of the life experience one gains at school.
Smoke-Free Needs are Akin to Wheelchair Ramp Needs – Only More Perilous
Just as people who utilize
wheelchairs need wheelchair ramps to successfully navigate the campus, the
Smoke Disabled need a campus that is truly 100% smoke free. Placing logs across wheelchair ramps would
render them ineffective. So too does
permitting smoking in the path of the Smoke Disabled as it renders the air
ineffective.
Added to the issue of mobility
impediment that both of these conditions share, consider that even more is at
stake for the smoke disabled than their dignity and access rights. Their life is in danger. Even when not directly exposed, the dangerous
smoke is carried through the air to them.
Need For 100% Smoke Free Campuses
Petitioning
for 100% indoor and outdoor nonsmoking designations for post-secondary campuses
would help ensure OHRC and MTCU guarantees are effectively
implemented for the smoke disabled. A
100% ban of smoking on all post-secondary campuses, inside and outside, would
empower the Smoke Disabled to effectively pursue their education.
The
benefits include: smoke not entering the buildings; smokers would not have as
much chemical residue on their clothes thanks to the smoke free walk across
campus; and smoke-free air in general.
All this would work to ensure access rights of the Smoke Disabled, if
effectively addressed, allowing them to walk across campus and utilize
facilities without fear.
Shortfalls and Inadequacies of Only Partial Bans
Designating
a building smoke-free does not prevent smoke from entering the building. Generally, and especially during inclement
weather, smokers maintain a very close proximity to building entrances. Smoke flows into the building when doors are
opened. In some cases gaps in doors,
provide a constant stream of smoke into the building. With the smoke in the building, an allergic
individual can have a severe attack simply by being in the building.
Walkways
and entrances are common smoking hangouts.
Walking across campus and between buildings is taken for granted daily
by thousands of students. For the Smoke
Disabled this can be a terrifying and embarrassing experience as they are
forced to pick their way across campus, often forcibly segregated from their peers.
Sometimes
entering a building can be impossible due to the ring of smokers tightly
surrounding the entrances. Not being
able to walk through the doors creates a situation contrary to the MTCU guarantee for disabled
post-secondary education access with dignity and without impediment.
On a personal note, attempts in
increasing steps to restrict the smoking at my law school have been grossly
inadequate. Even if a restriction of
distance from the building were effective, which it is not, due to the wind
bringing it into the pathways and buildings, people by nature are inclined to
stand closer as they return to their ‘comfort zone’. Some even choose to smoke inside the
building in a back room, something banned here for many years. Naturally the smoke still comes into the
common areas and has a very negative impact on a person who is Smoke Disabled.
Research has shown that overall,
following restrictive regulations is more likely in a situation of complete ban
than a restriction for which the individual constantly needs to be consciously
aware of the boundary. It would also be
easier for campus police officers and other security personnel to maintain a
complete ban than a partial restriction.
Even When Life is not in Danger -
Smoke Negatively Impacts Access to Education
Even when
severe attacks do not completely prevent attendance, mild symptoms can make
schoolwork difficult. Being forced to
spend a significant amount of time enduring an attack and recovering from it
increases disadvantage due to reduced studying time. This compounds the disadvantage of not being
able to consistently attend classes.
“Even if the individual with asthma
is able to attend work or school, ongoing symptoms or medication side effects
may alter concentration and performance.”[202] “Even between asthma attacks, asthma takes
its toll.”[203] Many experience continuous symptoms and have
sleep disturbances, which may affect their daytime functioning.[204]
Even if someone has an attack which
is not life threatening, their well-being is negatively affected. Their mind is focused on breathing, their
perceptual abilities can be hindered, and tremors caused by combative
medication can make it difficult to type or write. I have personally been subjected to these
situations including an attack during an exam, which resulted in a mark
significantly below those of my other exams.
BARRIERS & ATTITUDES
Barriers
The International Classification of Functioning,
Disability and Health defines barriers as factors in a person’s environment
that, by absence or presence, limit functioning.[205] Students with disabilities face
onerous barriers in accessing education including physical inaccessibility,
systemic problems, and negative attitudes.
Anything that restricts full participation is
a barrier.[206] [207]
[208] Some students do
not feel welcome or included in class or social activities.[209]
Removing Barriers
The Supreme Court of Canada has
found that barrier removal (including systemic barriers) is required to effect
equality guarantees in accommodating persons with disabilities.[210] [211]
Removing
barriers eliminates disabling conditions and promotes equality and freedom from
discrimination. Educators must remove
all barriers to the point of undue hardship to effect equal access for students
with disabilities.[212] Achieving a barrier-free campus ensures its
buildings and facilities “can be approached, entered and used by persons with
physical or sensory disabilities.”[213] If barriers are not removed, persons with
disabilities are prevented from participating fully and stereotypes are
perpetuated.[214]
Canadian Attitudes Toward Disabilities
Canadians are most likely to point
to prejudice on the part of individuals and society-at-large as the most
significant barrier to inclusion facing persons with disabilities (49%), a view
shared by citizens with or without disabilities. To a lesser extent, the public identifies
obstacles in the form of physical barriers (e.g., lack of accessible buildings
…) (29%) … as a principle barrier to the inclusion of persons with
disabilities.[215]
The prejudice and attitudes of
others are the primary dominant barriers faced by persons with disabilities and
the principle causes of discrimination.
Most believe the solution lies in increasing public awareness and
acceptance of persons with disabilities.[216]
Discriminatory Attitudes
Poor knowledge of disability
issues, negative attitudes and stereotypes pose substantial barriers and can
lead to discrimination and degrading questions especially for students with
non-evident disabilities.[217] [218] In educational institutions, removing
attitudinal and communication barriers is at least as important as removing
physical barriers.[219] Negative attitudes are often identified as
major barriers even though everyone has the right to be free from harassment,
humiliating or annoying behaviour. Left
unchallenged, discrimination is legitimized and hostilities poison social
environments. Schools have a crucial responsibility to
maintain a positive, supportive environment through the education of students about human rights and implementing
anti-discrimination strategies.[220] [221] [222]
In the Meiorin decision, the Supreme Court of Canada expressed in it’s
ruling that the attitudes of those who seek to maintain discriminatory
standards are irrelevant. The court
cited that accommodation must go deeper than adjustments. Society is required
to change procedures and services as needed, abandoning the historic concept of
normal in favour of truly inclusive environments.[223]
Clearly then, in seeking smoke-free
campuses, protests against change can have no legal bearing whatsoever. Society in general and the schools in
particular have a responsibility to create a newer, more inclusive version of
normal.
Social Handicapping
Social attitudes, actions and
constructs of normality are often the root of discrimination; reinforcing
barriers to integration in the form of social handicapping.[224] A person may have few or even no limitations
other than those created by non-inclusive thinking.[225]
The Supreme Court of Canada has
noted that society must be refined so persons with disabilities are not
excluded from societal participation.[226] Standards should be designed to reflect all
members of society.[227] [228]
SMOKING
Smoking is a Privilege, not a Right
“Freedom means that, subject to
such limitations as are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others, no one is to be forced
to act in a way contrary to his beliefs or his conscience.”[229] Accordingly, restricting a chosen behaviour
must be for one of these principles of protection. A 100% ban of indoor and outdoor smoking on
educational campuses does not unduly impinge on this choice; as it is for the
protection of health and public safety.
Although, it is common to hear
claims of a right to smoke, these claims are false and ill informed. There currently exists a privilege to smoke
but as we have seen in bylaws and other restrictions, there is no breach of
civil rights in banning or restricting privileges such as smoking behavior.
Restricting where someone can participate in an activity of choice is not a
novel idea. We already restrict where it
is and is not acceptable to participate in certain activities, such as the
consumption of alcohol.
It is important to keep in mind
that a campus wide ban of smoking is a ban of behavior, not a ban of the
individual who chooses the behavior. The
individual who chooses to smoke is still entitled to full access of the campus;
they are simply prohibited from partaking in the smoking behaviour while on campus. This equalizes access opportunities for both
people who choose to smoke and the Smoke Disabled.
Even if we were to consider the
specific activity of smoking to be a guaranteed right although not listed in
the Constitution or Charter and therefore of no merit,
constitutionally guaranteed rights only exist up to the point that they do not
impinge on someone’s more fundamental rights.
Undoubtedly, a right to perform a leisure activity would be overcome by
the more fundamental rights to: equality; life, liberty and security of the
person; and guaranteed access to education.
When life and recreational concerns are at odds, the life concerns must
prevail.
Smoking is an Addiction, not a Disability
When looking for a reason not to
further ban smoking, some will argue that smoking is a disability, however this
claim is also false. While it is vital
to have concerns for the health and well being of someone with an addiction,
the correct response is not to enable their addiction but to help them overcome
it.
Society does not permit the
consumption of alcohol wherever a person chooses and neither should we permit
(nor do we permit) smoking to occur simply anywhere. In response to alcoholism, we seek to help
the individual overcome their addiction, so they too can have adequate pursuit
of their health and rights. It is
therefore imperative that we encourage and support people in seeking treatment
for their addiction.
Fears of nicotine withdrawal
symptoms do not even closely proximate the fear of asthma attacks, which is a
genuine fear for one’s life and abilities.
Other sources of nicotine, such as the patch and nicotine gum, do not
create environmental smoke and could be utilized to allay these symptoms. Even with treatment and medication, there is
no similar alternative for the asthmatic to temporarily disable their
allergies.
A disability is not a choice. However, smoking is a choice to begin, albeit
often a difficult one motivated by peer pressure. An asthmatic does not have a choice in how
their lungs will react.
Cigarettes and other products
containing tobacco are highly engineered to create and maintain dependence,
which is a classified disorder.
Typically, tobacco addiction is difficult to beat which is why
appropriate consideration and measures to aid in quitting need to be readily
available.[230] [231] A smoke free campus will help prevent people
from starting and aid those who wish to quit smoking.
Mortality Statistics
Some poignant statistics about the
dangers of tobacco smoke include:
The Monetary Costs on Tobacco
Smoking costs the Canadian health
care system approximately $3.5 billion every year.[242]
Ontario’s portion of these costs is more than $1 billion every year.[243] Economic costs also include $42.6 billion
annually in productivity losses.[244] The overall annual global net loss yearly is
$200 billion US dollars.[245]
In considering the full monetary
costs of tobacco, one must also include the costs for medications and other
health aids. As well, it is doubtful
that every asthma related health care expense, connected to second-hand smoke,
is listed as such. Although some may
argue that tax revenue and tobacco company sponsorship of arts and recreational
events are of critical importance to the economy, they could not even begin to
make up for the associated monetary and mortality costs.
Tobacco Dangers
Tobacco smoke contains a mixture of
over 4,500 chemicals with at least 50 of them being carcinogenic. The top 6
toxins of cigarettes are tar, nicotine, carbon monoxide, formaldehyde, hydrogen
cyanide, and benzene.. [246] [247] Second-hand smoke accounts for two thirds of
a cigarette’s smoke and has at least twice the nicotine and tar as the smoke
inhaled by the smoker. [248]
Regular exposure to second-hand
smoke increases the chances of contracting lung disease by 25% and heart
disease by 10%. Second-hand smoke is
especially irritating to the respiratory system and aggravates allergy and
asthma symptoms, even contributing to respiratory morbidity. It also causes illness in otherwise healthy
people.[249] [250]
Smoking worse than diesel fumes for asthma
Environmental tobacco smoke
produces fine particulate matter (FPM), which is the most dangerous element of
air pollution for health. Research has
demonstrated that the smoke from three cigarettes produces10 times more FPM
than the fumes of a diesel engine. Tobacco smoke is an air pollutant that can
and should be controlled. [251] [252]
Cigars are not safe either
Environmental Tobacco Smoke is a
danger, whether it comes from pipes, cigars or cigarettes. Even when equal
amounts of tobacco are burned in cigarette and cigar form, more sidestream
smoke is produced by cigars than cigarettes. [253] [254] [255]
“A large cigar is the equivalent of four to five cigarettes in nicotine, 15
cigarettes in tobacco and 25 cigarettes in carbon monoxide.”[256]
Symptoms are worse as a result of exposure to cigar smoke than to cigarette smoke.
Passive Tobacco Smoke Prevention
The most cost-effective strategies
are population-wide public policies, like smoke-free environments in schools
and public places.[257] While many of theses strategies already
exist, this work needs to be expanded to reduce the continued exposure to
passive smoke in Canada.”[258]
CAMPAIGN
The
campaign for 100% smoke-free campuses, indoors and outdoors requires three
initiatives.
1)
Lobby school
administrations to implement policies and regulations.
2)
Lobby the provincial
government for legislation making all educational campuses 100% smoke free
indoors and outdoors.
3)
Simultaneous
educational campaign to raise awareness and understanding of the plight of the
smoking disabled.
Social change can occur through
attitude and behaviour changes of individuals and through changes in laws and
policies. To effect attitudinal and
behaviour changes, people need to be equipped with knowledge of the situation
of the Smoke Disabled. Likewise, to
effect formalized change, institutions and governments need to be equipped with
the same knowledge as well as how effective accommodations can be achieved.[259]
Appeals to Post-Secondary Educational Institutions
By
lobbying school administration to implement policies there is the possibility
to expedite the ultimate goal. Even if
only some campuses introduce a partial restriction on outdoor smoke, it will
begin the process and help in demonstrating the rights of the Smoke Disabled.
At my law school some restrictions
are already in place, although they are not adequate, particularly because they
do not extend to the entire campus.
However, these initiatives can effectively act as a learning site for
the trials, tribulations and achievements gained by implementing smoking
restrictions.
Beyond the legal duty of faculty
and administrators to maintain a positive school environment for students with
disabilities; their attitudes and approach to disability issues set the initial
tone for how students will respond.[260] By obtaining a voluntary buy-in from educational
institutions, the opportunities to foster true understanding across campuses
will be greatly assisted and heightened.
Appeals to Provincial Government
Petitioning
the provincial government to develop on point smoke-free legislation, ensures a
permanent, long-term solution. Thus
assuring that the constitutionally protected rights of the Smoke Disabled are
protected; allowing safe, secure access to education, free of this terrifying
barrier. “Legislation is
necessary to complement voluntary efforts to reduce exposure to air
contaminants such as cigarette smoke, indoor and outdoor pollution, and
workplace contaminants.”[261]
Full participation, equality and
the social integration of disabled persons require all aspects of social life
to be discussed from the point of view of disabled persons and the disabling
factors in society. Legislation is one
way – perhaps the most important – of promoting equality in society. Laws both reflect and affect societal values
and the attitudes prevalent among the population at large.[262]
In particular, lobbying, for the
inclusion of this initiative in Bill 164
would help realize the Government’s commitment to “make all public and work
places in Ontario 100% smoke free”[263]
by 2006. Bill 164 as it is currently written falls short of the necessary
components to meet the stated objective and the needs of the Smoke
Disabled. Success in this lobbying
effort would legislate 100% smoke free educational campuses as of May 31, 2006;
dramatically enhancing the inclusion, equality and freedom of the Smoke
Disabled.
In some cases, legislation that
changes behaviour, such as access laws, can encourage changes in attitudes, as
people begin to see the benefits of the legislation.[264] Legislation is vital to long-term protection
because permanent, enforceable improvements are needed; not discretionary whims
based on the current administration.[265]
Support of Students and Professors
Petitions and letter writing
campaigns can help demonstrate that support exists beyond that of those who
have the disability. At Windsor Law, I
have received overwhelming support from
most students, staff and faculty. This support includes students who
smoke and recognize the danger it poses to the Smoke Disabled and are
voluntarily agreeable to the ban. A strong
demonstration of support will hopefully effect institutional and government
action on a timelier basis.
Simultaneous Educational plan
“Canadians believe increasing
awareness and public education is the most important way to reduce
discrimination against persons with disabilities.[266] Ongoing
education programs have been specifically identified as a requirement of a
complete strategy for resolving human rights issues.[267] The key to
cooperation in a 100% ban of smoking, lies in launching an educational campaign
across campuses, including campus ads, a web presence and public speaking
engagements.
Although
there will naturally be some opposition and reluctance to support a 100% ban,
generally it will stem from misunderstanding or ignorance of the true nature of
the potential effects. “[M]ost
smokers want to understand and respect the right of others to breath clean
air.”[268] No one can be expected to automatically be
aware of the smoking disabled needs.
Members of the campus community require adequate and thorough
information to enable them to understand and appreciate the plight of the Smoke
Disabled.
By far the most commonly identified
solution (62% of Canadians) to discrimination is increasing awareness about
persons with disabilities. Within this
theme, the principle component identified is more public education and
information (46%), while others emphasize the need to talk about it more,
making this issue more of a priority within the school system, expanding
people’s exposure to persons with disabilities, and doing more in the
media. This emphasis on increasing
awareness is consistent with the public’s view that prejudice and attitudes
constitute the greatest barrier facing persons with disabilities.[269]
For me,
an administration headed campaign to educate and seek cooperation was not
adequately successful in restricting smoking but, when I began speaking to
classes and explaining the dangers and difficulties I faced, voluntary
cooperation dramatically increased leading to drastically improved school access
and overall health.
One of
the simplest ways to influence somebody is to tell them about yourself. Everybody is different and difference can be
frightening. When you tell someone about
yourself – about your daily life, your thoughts and feelings – you make it
easier for them to understand you. As
individuals, disabled people can tell the community about their needs.[270]
Establishing a website dedicated to
the access needs of the smoking disabled can provide widespread accessibility
of relevant information. While it would
initially focus on post-secondary education needs, it could eventually be
expanded into the need for access to parks and other places of public
purpose. To this end, viability for a
web site called ‘Smoke Free Access’ is currently being explored.
Some of the specific messages of
the campaign would be:
Public
announcements on campuses through established communication channels will
demonstrate support from the institutions while helping them to meet their duty
to inform all students of disabled rights needs.[271] This will help supplement and strengthen a
broad Province wide educational campaign.
The more approaches used to disseminate knowledge, the greater the
awareness that can be spread.
“Attitudes can be the most
difficult barrier persons with disabilities face in achieving full integration,
acceptance and participation in society.
Thoughtful presentation of information about persons with disabilities
can help overcome negative attitudes and shape positive ones.”[272] This is why an educational campaign is
critical to the success of the ban.
Funding
Although much of the work of this
campaign does not require much funding, the educational campaign will not be
effective without some means to fund it.
There are many grants available to non-profit organizations,
particularly for establishing new initiatives.
One funding source, which can be
approached, is Canada’s Social Development Partnerships Program, which offers
funding to national activities of non-profit disability groups.[273] [274] One of the program’s primary objectives is to
“promote the generation, dissemination and application of knowledge on emerging
social concerns, innovative solutions, best practices; and social and economic
outcomes as they relate to the persons with disabilities.”[275]
OTHER IMPLICATIONS
Implications for Smoking Disabled Access
Successful
petitioning for truly 100% smoke-free campuses at Ontario Post-Secondary
educational institutions would be a first step in securing effective access to
other locations. Walking in a park should not be cause to fear for one’s
life. The success of this initiative will help advance lobbying for smoke free
parks, beaches, sidewalks and other outdoor places of public purpose. Working towards widespread bans on outdoor
smoking for the sake of disabled rights access will also help support the fight
many still face to obtain smoke free indoor environments.
Implications for Other Jurisdictions
Many
other jurisdictions have tobacco control initiatives and disabled rights
protection legislation and policies.
Regardless of the specific guarantees, the success of this initiative
will raise awareness of the plight faced by the smoke disabled in attempting to
access post-secondary education. Ontario
could serve as a model for promoting similar campus smoking bans in other
jurisdictions.
Implications for Other Disabilities
The
campaign’s success would be an example of societal and governmental
responsibility to adequately and meaningfully protect disabled rights, thereby
advancing disabled rights in general. It
will, expand the awareness and understanding of Canadian societal obligations
to accommodate persons with disabilities. Also, it would bolster the overall
disabled rights movement in which “individuals with disabilities are working to
achieve equality, independence and full participation in learning, work and
community life.”[276]
CONCLUSION
Individuals
who suffer disabling effects from exposure to smoke should not be segregated
and offered inadequate access to education.
They have a right to the same access protection afforded individuals
with other disabilities. Designating
post-secondary education campuses as 100% smoke free, indoors and outdoors,
will significantly improve access to education and help advance the overall
mission to protect nonsmokers from exposure.
[1] Genevieve Pinet, Is the Law Fair to the Disabled? WHO Regional Publications, European Series, No. 29 (England: World Health Organization: Regional Office for Europe, 1990). at 1 [Pinet].
[2] Ontario
Human Rights Commission, “Education and Disability: Human Rights Issues in
Ontario’s Education System: Consultation Paper” at 3, online: Ontario Human
Rights Commission <http://www.ohrc.on.ca>
[Education].
[3] Ontario Human Rights Commission – The Opportunity to Succeed: Achieving Barrier-Free Education for Students with Disabilities (Toronto: Ontario Human Rights Commission) at 5, online: Ontario Human Rights Commission <http://www.ohrc.on.ca> [Opportunity].
[4] Ontario Human Rights Commission “Guidelines on Accessible Education” at 7 (September 29, 2004), online: Ontario Human Rights Commission <http:www.ohrc.on.ca> [Guidelines].
[5] Ontario Human Rights Commission “Policy and Guidelines on Disability and the Duty to Accommodate: Fact Sheet #1 – What is Disability?”, online: Ontario Human Rights Commission <http://www.ohrc.on.ca>[Policy].
[6] Social Development Canada, Advancing the Inclusion of Persons with Disabilities (2002), online: Government of Canada <http://www.sdc.gs.ca> [Advancing].
[7] Advancing, ibid.
[8] Advancing, ibid.
[9] Policy, ibid.
[10] Ministry of Citizenship and Immigration, Accessibility Directorate of Ontario: A Guide to Annual Accessibility Planning under the Ontarians with Disabilities Act, 2001 (Ontario, Queen’s Printer, 2004) at 1 & appendices [Accessibility].
[11] Guidelines, ibid.
[12] Quebec (Commission des droits de la personne
et des droits de la jeunesse) c. Montreal (Ville); Quebec (Commission des
droits de la personne et des droits de la jeuness) c. Boisbriand (Ville),
[1998] C.S.C.R. no 169.
[13] United Nations, “The Standard Rules on the Equalization of Opportunities for Persons with Disabilities,” online: United Nations Enable <http://www.un.org> [Rules].
[14] Office of the High Commissioner for Human Rights, “Declaration on the Rights of Disabled Persons,” online: United Nations <http://www.unhchr.ch> [Declaration].
[15] Ontarians with Disabilities Act, S.O. 2001, c. 32 [ODA].
[16] Treasury Board of Canada – Secretariat, “Accessibility Domain Architecture – Disability and Accessibility,” online: Government of Canada <http://www.cio-dpi.gc.ca>.
[17] Rules, ibid.
[18] Pinet, ibid, at viii.
[19] Guidelines, ibid, at 17.
[20] Canadian Abilities Foundation “Disability Definitions – Specific Disabilities” (Abilities Magazine), online: Canadian Abilities Foundation <http://www.enablelink.org> [Definitions].
[21] Accessibility, ibid, at appendices & 5.
[22] Inter-University Disability Issues Association, “Students with Disabilities Requesting Services through the Offices for Students with a Disability” (Ministry of Training, Colleges and Universities (MTCU) University Sector Statistics, 2004) at 8 [Inter-University].
[23] Inter-University, ibid.
[24] Inter-University, ibid.
[25] Jure Manfreda, et. al. “Prevalence of asthma symptoms among adults aged 20-44 years in Canada” (2001) C.M.A.J. at 995, online: Canadian Medical Association <http://www.cmaj.ca>.
[26] Allergy/Asthma Information Association, “Home Page,” online: Allergy/Asthma Information Association <http://www.aaia.ca>.
[27] The National Asthma Control Task Force, “The Prevention and Management of Asthma in Canada: a major challenge now and in the future” (2000) at vii & 47 [Force].
[28] Nova Scotia Environmental Health Clinic, “Environmental Sensitivities (ES) or Multiple Chemical Sensitivities (MCS)” online: Nova Scotia Environmental Health Clinic <http://www.cdha.nshealth.ca>.
[29] Helen Branswell, – “Asthma Rates Vary Widely Across Canada” The Canadian Press (April 3, 2001), online: Canoe Network – C Health <http://www.canoe.ca>.
[30] Force, ibid, at viii.
[31] Dr. Ken Chapman & Dr, Pierre Ernst, Asthma in Canada A Landmark Survey (Mississauga: Glaxo Wellcome Inc., 2000) at 1.
[32] Force, ibid, at 6.
[33] Force, ibid, at 25.
[34] Force, ibid, at ix, x, xi, 33, 45 & 47.
[35] Force, ibid, at 21-22.
[36] Force, ibid, at 47.
[37] ODA, ibid.
[38] Accessibility, ibid, at 1.
[39] Bob Rae, Ontario A Leader in Learning Report & Recommendations (Government of Ontario, 2005) at 68, 69 & 70 [Rae].
[40] Opportunity, ibid, at 5 & 10.
[41] Human Rights Code, R.S.O. 1990, c. H. 19, s. 2 (1); 1999, c. 6, s. 28 (2); 2001, c. 32, s. 27 (1) [Code].
[42] Education, ibid.
[43]Code, ibid.
[44] Peel Board of Education v. Ontario (Human Rights Commission), [1991] O.J. No. 639, (1991) 3 O.R. (3d) 531.
[45] Guidelines, ibid, at 6.
[46] Ontario
Human Rights Commission, “Human Rights Law and Policy,” online: Ontario Human
Rights Commission <http://www.ohrc.on.ca>
[Rights].
[47] Opportunity, ibid, at 10.
[48] Code, ibid.
[49] Opportunity, ibid, at 12.
[50] Code, ibid.
[51] Code, ibid.
[52] Bill Holder, “Accommodation of Disability in Ontario” (July 2004) at 6, online: ARCH: A Legal Resource Centre for Persons with Disabilities <http://www.archlegalclinic.ca> [Holder].
[53] Ontario Human Rights Commission, “Submission of the Ontario Human Rights Commission to the Ministry of Citizenship and Immigration Regarding the Consultations to Strengthen the Ontarians with Disabilities Act” (March 31, 2004) at 4, online: Ontario Human Rights Commission <http://www.ohrc.on.ca>.
[54] ODA, ibid.
[55]Accessibility, ibid, at 1.
[56] ODA, ibid.
[57] Accessibility Ontario, “Colleges and Universities,” online: Government of Ontario <http://www.gov.on.ca>.
[58] Opportunity, ibid, at 46.
[59] Education, ibid.
[60] Opportunity, ibid, at 11.
[61] Opportunity, ibid, at 5-6
[62] Guidelines, ibid, at 11.
[63] Ontario Human Rights Commission, “Ontario Human Rights Commission takes Further Actions to aid Students with Disabilities” (News Release, November 30, 2004), online: Ontario Human Rights Commission <http://www.ohrc.on.ca> [Actions].
[64] Actions, ibid.
[65] Guidelines, ibid, at 11.
[66] Rae, ibid, at 1, 2, 12, 32 & 39.
[67] Rae, ibid, at 1 & 69.
[68] ODA, ibid.
[69] Ontarians with Disabilities Act Committee, “Ontario Needs a New Law Now to Make it Barrier-Free for People with Disabilities,” online: Ontarians with Disabilities Act Committee <http://www.odacommittee.net> [Needs].
[70] Needs, ibid.
[71] ARCH, “Submission to the Standing Committee on Social Policy with Respect to Bill 118 Accessibility for Ontarians with Disabilities Act, 2004” (February 2, 2005), online: ARCH: A Legal Resource Centre for Persons with Disabilities <http://www.archlegalclinic.com> [ARCH].
[72] Bill 118, Accessibility for Ontarians with Disabilities Act, Legislative Assembly of Ontario 2004 [Bill 118].
[73] Bill 118, ibid.
[74] Ontario Human Rights Commission, “Chief Commission Comments on Bill 118, the Proposed Accessibility for Ontarians with Disabilities Act” (February 23, 2005) <http://www.ohrc.on.ca> [Comments].
[75] ARCH, “ARCH Alert” (January 11, 2005), at 3, online: ARCH: A Legal Resource Centre For Persons With Disabilities <http://www.archlegalclinic.ca>.
[76] Comments, ibid.
[77] Bill 164, Tobacco Control Statute Law Amendment Act, 2004, Legislative Assembly of Ontario 2004.
[78] Ministry of Health and Long-Term Care, “McGuinty Government Protecting Ontarians’ Health with Proposed Smoke-Free Legislation” (Ontario Newsroom, Dec 15, 2004), online: Government of Ontario <http://www.gov.on.ca> [McGuinty].
[79] Holder, ibid, at 4-5.
[80] Disability Awareness in Action “Consultation and Influence: Resource Kit No. 2,” online: Disability Awareness in Action: The International Disability & Human Rights Network <http://www.daa.org.uk> [Resource Kit].
[81] ODA, ibid.
[82] Andrews v. Law Society of British Columbia, [1989] S.C.J. No.6, [1989] 1 S.C.R. 143 [Andrews].
[83] Council of Canadians with Disabilities, “The Disability Rights Movement and the Present Constitutional Challenge” (Law Reform: Analysis), online: Council of Canadians with Disabilities <http://www.ccdonline.ca> [Movement].
[84] Andrews
[85] R. v. Turpin,[1989] S.C.J. no. 47, [1989] 1 S.C.R. 1296.
[86] Movement, ibid.
[87] Speech by the President of the Treasury Board of Canada to the Disabled Peoples’ International Summit 2004, “The World Needs More Canada: Strengthening Support for People with Disabilities,” online: Government of Canada <http://www.tbs-sct.gc.ca> [Canada].
[88] Daphne A. Dukelow, The Dictionary of Canadian Law, 3rd ed. (Toronto, Thomson Carswell, 2004) s.v. “liberty” [Dukelow].
[89] Dukelow, ibid.
[90] Dukelow, ibid, s.v. “security of the person”
[91] Social Development Canada, “Supporting Persons with Disabilities: Frequently Asked Questions about Programs and Services for Canadians with Disabilities” (2004), at 23, online: Government of Canada <http://www.sdc.gc.ca> [Supporting].
[92] Resource Kit, ibid.
[93] Health Canada, “Health Minister Congratulates New Brunswick and Manitoba on Smoke-Free Status” (News Release, October 1, 2004), online: Health Canada <http://www.hc-sc.gc.ca> [Congratulates].
[94] Health Canada, “Canada Ratifies the Framework Convention on Tobacco Control, the World’s First Public Health Treaty” (News Release, December 2, 2004), online: Health Canada <http://www.hc-sc.gc.ca> [Ratifies].
[95] Health Canada, “Framework Convention on Tobacco Control Goes Into Force” (News Release, February 25, 2005), online: Health Canada <http://www.hc-sc.gc.ca> [Into].
[96] Congratulates, ibid.
[97] Canada, ibid.
[98] ODA, ibid.
[99] Advancing, ibid.
[100] Governor General, “Speech From the Throne” (National Library of Canada, February 2004) at 2, 6 & 9, online: Office of the Prime Minister <http://www.pm.gc.ca> [Throne].
[101] Opportunity, ibid, at 64.
[102] Council of Canadians with Disabilities, “Law Reform Analysis: The Disability Rights Movement and the Present Constitutional Challenge,” online: Council of Canadians with Disabilities <http://www.ccdonline.ca> [CCD].
[103] CCD, ibid.
[104] Rae, ibid, at 6.
[105] Canada, ibid.
[106] Prime Minister Paul Martin, “Speech in Reply to the Speech From the Throne” (February 2004), online: Office of the Prime Minister <http://www.pm.gc.ca> [Martin].
[107] Martin, ibid.
[108] Education, ibid.
[109] Advancing, ibid, at 4.
[110] Throne, ibid, at 7.
[111] Health Canada, “Health and Air Quality Risk Assessment,” online: Health Canada <http://www.hc-sc.gc.ca> .
[112] Social Development Canada, “Social Development Partnerships Program: Terms and Conditions,” online: Social Development Canada <http://www.sdc.gc.ca> [Partnerships].
[113] Throne, ibid, at 7.
[114] Opportunity, ibid, at 5.
[115] Ontario Human Rights Commission, “Policy and Guidelines on Disability and the Duty to Accommodate: Part 3. The Duty to Accommodate,” online: Ontario Human Rights Commission <http://www.ohrc.on.ca> [Duty].
[116] Education, ibid.
[117] United Nations, “Office of the High Commissioner for Human Rights,” online: United Nations High Commissioner for Human Rights <http://www.unhchr.ch> [Commissioner].
[118] Commissioner, ibid.
[119] Declaration, ibid.
[120] Duty, ibid.
[121] Commissioner, ibid.
[122] Ratifies, ibid.
[123] World Health Organization, WHO Framework Convention on Tobacco Control, (Geneva Switzerland: World Health Organization, 2003) at v., online: World Health Organization <http://www.who.int> [Framework].
[124] Into, ibid.
[125] HealthyOntario.com, “Global Anti-Smoking Pact Takes Effect” (News March 1, 2005), online: www.healthyontario.com
[126] Ratifies, ibid.
[127] Ratifies, ibid.
[128] Framework, ibid at 5.
[129] Framework, ibid at v, 3 & 5.
[130] Into, ibid.
[131] Ratifies, ibid.
[132] Ratifies, ibid.
[133] Framework, ibid at 8.
[134] Holder, ibid, at 1-3.
[135] British Columbia (Public Service Employee
Relations Commission) v. British Columbia Government and Service Employees’
Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] S.C.J. No. 46, [1999] 3
S.C.R. 3 [Meiorin].
[136] British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] S.C.J. No. 73, [1999] 3 S.C.R. 868 [Superintendent].
[137] Guidelines, ibid, at 8.
[138] Eaton v. Brant County Board of Education, [1996] S.C.J. No. 98, [1997] 1 S.C.R. 241 [Eaton].
[139] Ontario Human Rights Commission, “Policy and Guidelines on Disability and the Duty to Accommodate,” online: Ontario Human Rights Commission <http://www.ohrc.on.ca>.
[140] Holder, ibid, at 3.
[141] Superintendent, ibid.
[142] Holder, ibid, at 3.
[143] Thwaites v. Canada (Canadian Armed Forces), [1993] C.H.R.D. No. 9 No. T.D. 9/93.
[144] Ontario Human Rights Commission, “Education for Persons with Disabilities in Ontario.” Online: Ontario Human Rights Commission <http://www.ohrc.on.ca> [Ontario].
[145] Opportunity, ibid, at 45.
[146] Definitions, ibid.
[147] Holder, ibid, at 3.
[148] Ontario Human Rights Commission, “Policy and Guidelines on disability and the Duty to Accommodate: Fact Sheet #2: Accommodating Persons with Disabilities,” online: Ontario Human Rights Commission <http://www.ohrc.on.ca> [Accommodating].
[149] Accommodating, ibid.
[150] Dukelow, ibid, s.v. “duty to accommodate”.
[151] Superintendent, ibid.
[152] Rights, ibid.
[153] Opportunity, ibid, at 6, 69 &70.
[154] Ontario Human Rights Commission, “Human Rights Issues in Education for Persons with Disabilities,” online: Ontario Human Rights Commission <http://www.ohrc.on.ca> [Issues].
[155] Opportunity, ibid, at 69.
[156] Canada, ibid.
[157] Duty, ibid.
[158] Guidelines, ibid, at 9 & 19.
[159] Issues, ibid.
[160] Eaton, ibid.
[161] Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12, 1 S.C.R. 497 [Law].
[162] Guidelines, ibid, at 20.
[163] Opportunity, ibid, at 6.
[164] Ontario Human Rights Commission, “OHRC Caseload Profile,” online: Ontario Human Rights Commission <http://www.ohrc.on.ca>.
[165] Opportunity, ibid, at 46.
[166] Guidelines, ibid, at 20.
[167] Duty, ibid.
[168] Duty, ibid.
[169] Duty, ibid.
[170] Issues, ibid.
[171] Guidelines, ibid, at 9 & 25.
[172] Law, ibid.
[173] Issues, ibid.
[174] Ontario Human Rights Commission, “Policy and Guidelines on Disability and the Duty to Accommodate: Part 4. Undue Hardship,” online: Ontario Human Rights Commission <http://www.ohrc.on.ca> [Undue].
[175] Code, ibid.
[176] Guidelines, ibid, at 21.
[177] Holder, ibid, at 25.
[178] Dukelow, ibid, s.v. “undue hardship”.
[179] Dukelow, ibid, s.v. “undue hardship”.
[180] Guidelines, ibid, at 37.
[181] Accessibility, ibid, at 9.
[182] Duty, ibid.
[183] Meiorin, ibid.
[184] Holder, ibid, at 4.
[185] Andrews, ibid.
[186] Brock (Litigation Guardian of) v. Tarrant Film Factory Ltd., [2000] O.H.R.B.I.D. No. 5.
[187] University of British Columbia v. Berg (1993), 18 C.H.R.R> D/310 (S.C.C.)
[188] Definitions, ibid.
[189] Advancing, ibid, at 20.
[190] Rae, ibid, at 70.
[191] Caseload, ibid.
[192] Advancing, ibid, at 30.
[193] Policy, ibid.
[194] Opportunity, ibid, at 46.
[195] Rules, ibid.
[196] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624.
[197] Policy, ibid.
[198] Rules, ibid.
[199] Rae, ibid, at 5 & 12.
[200] Canadian Council on Social Development, “Disability, Education & Labour Force Participation” (CCSD’s Disability Information Sheet, No.3 November 3, 2001) at 8, online: Canadian Council on Social Development <http://www.ccsd.ca>.
[201] Canadian Council on Social Development, “Persons with Disabilities and Health” (CCSD’s Disability Information Sheet, No.14, 2004) at 3-4, online: Canadian Council on Social Development <http://www.ccsd.ca>.
[202] Force, ibid, at 9.
[203] Force, ibid, at 9.
[204] Force, ibid, at 9.
[205] Advancing, ibid, at 79.
[206] Rae, ibid, at 69.
[207] Treasury Board of Canada Secretariat, “Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Sector,” online: Treasury Board of Canada <http://www.tbs-sct.gc.ca>.
[208] Advancing, ibid, at 79.
[209] Guidelines, ibid, at 13.
[210] Ontario Human Rights Commission (and O’Malley) v. Simpsons-Sears Ltd., [1985] S.C.J. No 74, [1985] 2 S.C.R. 536.
[211] Movement, ibid.
[212] Guidelines, ibid, at 13.
[213] Dukelow, ibid, s.v. “barrier-free”.
[214] Accessibility, ibid, at 8.
[215] Environics Research Group Limited, “Canadian Attitudes Towards Disability Issues: 2004 Benchmark Survey” (Prepared for Office for Disability Issues, 2004), at 4, online: Social Development Canada <http://www.sdc.gc.ca> [Environics].
[216] Environics, ibid, at 4, 5, 19 & 20.
[217] Opportunity, ibid, at 56.
[218] Issues, ibid.
[219] ARCH, ibid.
[220] Guidelines, ibid, at 15.
[221] Accessibility, ibid, at 8.
[222] Undue, ibid.
[223] Meiorin, ibid.
[224] Issues, ibid.
[225] Duty, ibid.
[226] Eaton, ibid.
[227] Meiorin, ibid.
[228] Duty, ibid.
[229] Dukelow, ibid, s.v. “freedom”.
[230] Health Canada, “What you can do,” online: Health Canada <http://www.hc-sc.gc.ca> [Health].
[231] Framework, ibid, at 1.
[232] Framework, ibid, at 1.
[233] World Health Organization, “Why is Tobacco a Public Health Priority?,” online: World Health Organization <http://www.who.int> [WHO].
[234] Into, ibid.
[235] WHO, ibid.
[236] Into, ibid.
[237] McGuinty, ibid.
[238] Ministry of Health and Long-Term Care, “Tobacco: Ontario Tobacco Strategy,” online: Ministry of Health and Long-Term Care <http://www.health.gov.on.ca> [Strategy].
[239] McGuinty, ibid.
[240] George Smitherman, “Remarks by George Smitherman - Minister of Health and Long-Term Care,” (Ontario Tobacco Control Conference, May 5, 2004), online: Ministry of Health and Long-Term Care <http://www.health.gov.on.ca> [Smitherman].
[241]WHO, ibid.
[242] Congratulates, ibid.
[243] Strategy, ibid.
[244] Smitherman, ibid.
[245] WHO, ibid.
[246] Health Canada, “The Facts About Tobacco,” online: Health Canada <http://www.hc-sc.gc.ca> [Facts].
[247] Force, ibid, at 20.
[248] Health Canada, “Second Hand Smoke,” online: Health Canada <http://www.hc-sc.gc.ca>. [Second Hand].
[249] Second Hand, ibid.
[250] Facts, ibid.
[251] Chemical Engineering Pilot Plant, “Cigarette-Smoke Pollution 10 times Worse Than Diesel Car Exhaust,” online: CEPP Resource Centre <http://www.rcentre.utm.my>.
[252] BBC News, “Smoking More Toxic Than Car Fumes” (August, 24, 2004), online: British Broadcasting Corporation <http://www.news.bbc.co.uk>.
[253] Action on Smoking and Health, “Pipe and Cigar Smoking” (Fact Sheet No. 13, July 2004), online: Action on Smoking and Health <http://www.ash.org.uk>.
[254] F. Baker et al, “Health Risks Associated With Cigar Smoking” (2000) 284 J.A.M.A. 735-740.
[255] Cancer Society of New Zealand, “Dangers of Cigar Smoking” (September 2004), online: cancer Society of New Zealand <http://www.cancernz.org.nz>.
[256] Texas Department of Health, “TDH Warns of Dangers From Smoking Cigars” (Accent on Health, August 4, 1997), online: Texas Department of Health <http://www.tdh.state.tx.us>.
[257] WHO, ibid.
[258] Force, ibid, at 26.
[259] Resource Kit, ibid.
[260] Guidelines, ibid, at 9.
[261] Force, ibid, at x.
[262] Pinet, ibid, at viii.
[263] Liberal Ontario, The Health Care We Need: The Ontario Liberal Plan for Better Health Care (Toronto, The Ontario Liberal Party, 2003) at 19.
[264] Resource Kit, ibid.
[265] Resource Kit, ibid.
[266] Environics, ibid, at 30.
[267] Ontario Human Rights Commission, “Policy and Guidelines on Disability and the Duty to Accommodate: Part 5. Accommodating Planning and Implementation,” online: Ontario Human Rights Commission <http:www.ohrc.on.ca>.
[268] Health, ibid.
[269] Environics, ibid, at 30.
[270] Resource Kit, ibid
[271] Guidelines, ibid.
[272] Social Development Canada, “A Way with Words and Images,” online: Social Development Canada <http://www.sdc.gc.ca>. [Words].
[273] Supporting, ibid, at 22.
[274] Partnerships, ibid.
[275] Partnerships, ibid.
[276] Words, ibid.