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:

• Recognition of the impact social handicapping has on disabilities;
• An emphasis on the right to integration and full participation;
• Recognition of the importance of inclusive design and barrier removal;
• Recognition that persons with disabilities are individuals first, and should be considered, assessed, and accommodated on an individual basis;
• The principle that responsibility for accommodation is shared by all parties to the process; and,
• A reaffirmation of the high standard of undue hardship.[59] [60]

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]

• “Equality of opportunity is the pillar of a successful society. The [Charter] explicitly guarantees equal protection and equal benefit of the law, without discrimination based on physical disability.” [87]
• Life is simply fundamentally the right to be alive.
• Liberty embraces “individual freedom of movement, including the right to choose one’s occupation and where to pursue it.”[88] The main issue in analyzing a liberty question is to examine if the activity is of “fundamental personal importance.”[89]
• “The right to ‘security of the person’ under s.7 of the Charter protects both the physical and psychological integrity of the individual.”[90]

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]