1. Organization of Educational and Cultural Development (OECD) Report on National Policies for Education, Paris, 1976Google Scholar.

2. Representation made to the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, Ottawa, 1980Google Scholar.

3. Constitution Act, 1982, as enacted by the Canada Act, 1982 (U.K.), 1982, c. 11Google Scholar. Section 15(1) states in full:

15(1) Every individual is equal before and under the law and has the right to equal protection of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physicial disability.

The term “handicapped,” “disabled,” and “special needs” are used inter-changeably throughout the report while recognizing that the “language of disability” is itself a contentious issue. For example, the 1984 Abella Report points out that the World Health Organization distinguishes between “impairment,” “disability,” and “handicap.” For the purposes of this report, handicap, disability and special needs denote both the loss or reduction of functional ability and activity, and the disadvantage consequent thereon. For a discussion of these definitions, see Abella, Rosalie, Equality in Employment (Ottawa: Minister of Supply and Services Canada, 1984), 38–46Google Scholar; and Wood, Philip H.N., World Health Organization, WHO/IC90/REV. CONF/75.15Google Scholar.

4. The absence of such guarantees stems in part from broader common law principles which deny remedies in tort and contract for individual or public acts of discrimination. For a fuller discussion of this point see Cameron v. Nel-Gor Nursing Home et al. (1984) 5Google Scholar C.H.R.R. D/2170.

5. For a pre-Charter example of this situation see, for example, R. v. Saxell (1980) 59 C.C.C. (2d) 176. For an interesting Charter decision that illustrates how the due process common law inequities have been ameliorated see R. v. Johnny, September 11, 1984, Unreported, (B.C. Supreme Court).

6. Alberta: Individual's Rights Protection Act R.S.A. 1980, c 1–2Google Scholar. British Columbia: Human Rights Code, R.S.B.C. 1979, c. 186Google Scholar, as amended by S.B.C. 1981, c. 15, s. 104, S.B.C. 1981, c. 21, s. 123, and S.B.C. 1982, c. 7, s. 58. Canada: Canadian Human Rights Act, S.C. 1976–1977, c. 33Google Scholar, as amended by S.C. 1977-78, c. 22, s. 5, S.C. 1980-81, c. 54, S.C. 1980-81-82, c. 111, and S.C. 1980-81-82-83, c. 143, ss. 1, 2. Manitoba: The Human Rights Act, S.M. 1974, c. 65Google Scholar, as amended by 1975, c. 42, s. 26, and S.M. 1982, c. 23. New Brunswick: Human Rights Act, R.S.N.B. 1973, c. H–11Google Scholar, as amended by S.N.B. 1976, c. 31. Newfoundland: The Newfoundland Human Rights Code, R.S.N. 1970, c. 262Google Scholar, as amended by S.N. 1974, Act No. 114, S.N. 1978, c. 35, s. 18, S.N. 1981, c. 29, S.N. 1981, c. 85, s. 13, and S.N. 1983, c. 62. Northwest Territories: Northwest Territories Fair Practices Ordinance, R.O.N.W.T. 1974, c. F–2Google Scholar, as amended by O.N.W.T. 1978 (2d) c. 16, O.N.W.T. 1980 (2d) c. 12, O.N.W.T. 1981 (3d) c.-6, O.N.W.T. 1981 (3d) c. 12. Nova Scotia: Human Rights Act, S.N.S. 1969, c. 11Google Scholar, as amended by S.N.S. 1970, c. 85, S.N.S. 1970-71, c. 69, S.N.S. 1972, c. 66, S.N.S. 1974, c. 46, S.N.S. 1977, c. 18, ss 16, 17, S.N.S., 1977, c. 58, and S.N.S. 1980, c. 51. Ontario: Human Rights Code, 1981, S.O. 1981, c. 53Google Scholar. Prince Edward Island: Prince Edward Island Human Rights Act, S.P.E.I. 1975, c. 72Google Scholar, as amended by S.P.E.I. 1977, c. 39, S.P.E.I. 1980, c. 26, and S.P.E.I. 1982, c. 9. Quebec: Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C–12Google Scholar, as amended by S.Q. 1978, c. 7, ss. 112, 113; S.Q. 1979, c. 63, s. 275; S.Q. 1980, c. 11, s. 34; S.Q. 1980, c. 39, s. 61; S.Q. 1982, c. 17, s. 42; S.Q. 1982, c. 21, s. 1; and S.Q. 1982, c. 61. Saskatchewan: The Saskatchewan Human Rights Code, S.S. 1979, c. S–24.1Google Scholar. The only jurisdiction lacking handicap as a prohibited ground of discrimination is the Yukon.

7. “Public education” refers here to Kindergarten through Grades 12 or 13 (depending on the provincial practice), and does not include post-secondary education or training. Whether or not the Charter implies a right to post-secondary education certainly is not clear at this early stage of constitutional development, and is beyond the scope of discussion in this article.

8. B.C. School Act, R.S.B.C. 1979, C. 375, s. 155(1)(a)(i)Google Scholar; Alberta School Act, R.S.A. 1970, C. 329, s. 136(1)(a)Google Scholar; Saskatchewan Education Act, R.S.S. 1978, C–01, s. 144(1)(2)Google Scholar; Manitoba Public Schools Act, R.S.M. 1970, c. P–250Google Scholar, s. 255(1)(2); Ontario Education Act, S.O. 1974, c. 109, ss. 31(1), 32(1)Google Scholar; Quebec Loi Sur l'Instruction Publique, 1977, C. I–14, s. 33Google Scholar; Nova Scotia Education Act, R.S.N.S 1967, c. 81Google Scholar as amended by S.N.S. 1970-71, C. 37, s. 2(1)(2); New Brunswick Schools Act, R.S.N.B. 1973, C. S–5Google Scholar, s. 5(1) and 5(1.1) as amended by S.N.B. 1986, C74 and 75; Prince Edward Island School Act, R.S.P.E.I. 1974, C. S–2Google Scholar, s. 47(1); Newfoundland Schools Act, R.S.N. 2970, C. 346Google Scholar as amended by S.N. 1974, No 28, s. 8: Yukon Schools Ordinance O.Y.T. 1974, C. 14, s. 27Google Scholar; Northwest Territories Education Ordinance, O.N.W.T. 1976, C. 14, s. 53(1)Google Scholar.

9. R.S.Q. 1977, C.-12, Article 40.

10. S.S. 1979, c. S-24.1, s. 13(1).

11. (1982) 3 C.H.R.R. D/197. For an interesting discussion (but no resolution) of the question of whether public schools fall within the words “any accommodation, service or facility customarily available to the public,” see Schmidt v. Calgary Board of Education and the Alberta Human Rights Commission, (1975) 6 W.W.R. 279 (Alta. C.A.)Google Scholar. For a discussion of this issue as it relates to private schools see Rawala and Souzer v. DeVry Institute of Technology, (1982) 3Google Scholar C.H.R.R. D/1057.

12. August 14, 1986. The Ontario Human Rights Commission had ruled that the School Board must provide an educational program for the students by October 1, 1986. However, the Board has decided to appeal the decision to the Supreme Court of Ontario. Pending the appeal, the board will continue to pay for the girls to be taught at a nearby public school, with only one and one-quarter hours of their day spent at the separate school.

13. Ibid., 38.

14. See Article 16. U.N.Doc A/811, 1948.

15. See Principle 7, U.N.G/A Res. 1386 (xiv), 14th G.A. 1959.

16. Human Rights: A Compilation of International Instruments (New York: U.N. Publications, 1975)Google Scholar.

17. Ibid., 114-115.

18. See in Ibid., Declaration of the Rights of the Child, Principle 5 (1959), 114; Declaration of the Rights of Mentally Retarded Persons (1971), 127Google Scholar; Declaration of the Rights of Disabled Persons (1975), 127–128Google Scholar.

19. R.S.B.C. 1978, c. 375.

20. R.S.S. 1978 (Supp.), c. E-91.

21. R.S.P.E.I. 1974, c. S-2.

22. Regulations of Prince Edward Island, c. S-2 School Act Regulations, Part V. s. 5 238(d).

23. Carriere v. County of Lamont No. 30, August 15, 1978, Unreported, (Alberta Queen's Bench).

24. Ontario Education Act, 1974 S.O. 1974 c. 109Google Scholar and amendments. More popularly known as Bill 82.

25. Ibid., s. 20a.

26. Ontario Hansard. May 23, 1980. See s. 8(2) of Bill 82 for the legislative expression of these objectives.

27. Carrière v. County of Lamont No. 30, August 15, 1978, Unreported, (Alberta Queen's Bench).

28. McMillan v. Commission Scholarie de Ste. Foy, (1981) Cour Superiere 172 (Quebec C.A.)Google Scholar.

29. Bouchard v. St. Mathieu-de-Dixville, (1950) S.C.R. 479Google Scholar.

30. Bales v. Board of School Trustees District No. 23, May 3, 1984, Unreported, (B.C. Supreme Court).

31. Doré et Lapointe v. La Commission Scholarie de Drummondville, June 1983, Unreported, (Quebec C.A.).

32. Bales v. Board of School Trustees District No. 23, May 3, 1984, Unreported, (B.C. Supreme Court).

33. Ibid., 33.

34. Ibid., 33-34.

35. For a discussion of this trend in education-related decisions see Sussel, Terri and Manley-Casimir, Michael, “The Supreme Court of Canada as a ‘National School Board’: The Charter and Educational Change,” Canadian Journal of Education, 11, no. 3, 1986CrossRefGoogle Scholar. An interesting political analysis of this trend is offered by Cohen, Lenard J., “The Transformation of Canadian Legal Culture: Another Quiet Revolution?” unpublished manuscript, 1987Google Scholar. For an empirical analysis which concludes that the judiciary is becoming more activist in its orientation see Morton, F.L. and Withey, M.J., “Charting the Charter, 1982-1985: A Statistical Analysis,” An Occasional Paper for the Research Unit for Socio-Legal Studies, The University of Calgary, September 1986Google Scholar. The opposite view is expressed in MacKay, A. Wayne, “The Charter of Rights and Special Education: Blessing or Curse?” Canadian Journal of Exceptional Children, 3, no. 2, 1987Google Scholar.

36. Eve, by her Guardian ad litem et al. v. Mrs. E. et al., October 23, 1986, Unreported, (S.C.C.).

37. Although the order was directed at Air Canada specifically, C.T.C. officials have stated that they intend to cast a wider net over more than 20 other domestic and foreign carriers that have similar discriminatory policies. Lipovenko, Dorothy, “Disabled Jettison Another Handicap,” Globe and Mail, November 8, 1986Google Scholar. See also the discussion Huck v. Odeon Cinemas, (1985) 3 W.W.R. 717Google Scholar.

38. “Parents Protest Decision to Bar Child from School,” Globe and Mail, September 3, 1986Google Scholar.

39. Elwood v. Halifax County Bedford School District. The agreement was reached on June 1, 1987. Luke Elwood suffers from delayed development which makes it difficult for him to understand or speak language.

40. For example, in the post-Charter case of Dolmage v. Muskoka Board of Education, February 9, 1985, Unreported (Ont. S.C.)Google Scholar, the court refused to elaborate details of the “appropriate placement” of a special needs child under Ontario's special education legislation. Instead the Court concluded that “The priorities of the Board in the process of phasing in special education programmes was a matter for the Minister (of Education), not the Court.”

41. This article is based on research conducted by the authors wherein responses from various public interest handicap organizations were solicited. A number of these interest group responses are incorporated in this article, as well as some of their submissions to the Sub-Committee on Equality Rights. This non-partisan parliamentary sub-committee travelled across Canada in 1985 in order to hear representations from Canadian citizens regarding their expectations of the Charter's equality provisions. See Department of Justice, Towards Equality (Ottawa: Minister of Supply and Services, 1986)Google Scholar.

42. Abella, , Equality in Employment (1984)Google Scholar.

43. O'Reilly, Robert R., “Educational Rights for Disabled Children,” in Just Cause 2, no. 3 (Fall 1984), 5Google Scholar.

44. Emphasis included. This statement is part of a larger policy paper released by the Education Committee of the CACLD and adopted by the Board of Directors in May 1984.

45. Henteleff, Yude M., Q.C. (Solicitor, Canadian Association for Children and Adults with Learning Disabilities), Sub-Committee on Equality Rights, no. 29 (1985), 34Google Scholar.

46. O'Reilly, “Educational Rights for Disabled Children.”

47. Whitman, Bruce (Member, Provincial Council, Manitoba League of the Handicapped), Sub-Committee on Equality Rights, No. 11 (1985), 53Google Scholar.

48. Piontkovsky, Roman, Executive Director, Vancouver Association for Children and Adults with Learning Disabilities, December 12, 1985Google Scholar.

49. Brown v. Board of Education 347 U.S. 483, (1954), 493.

50. Pennsylvania Association for Retarded Children (PARC) v. Commonwealth of Pennsylvania 343, F. Supp. 1257 (E.D.Pa. 1972).

51. Ibid., 293.

52. Mills v. Board of Education of the District of Columbia 348 F. Supp. 866 (D.D.C. 1972).

53. Education for All Handicapped Children Act 20 U.S.C.A. SS 1401-61 (1976 Supp. IV 1980).

54. See Citron, Christiane H., The Rights of Handicapped Students (Denver: Educational Commission of the States, 1982)Google Scholar.

55. Hendrick Hudson District Board of Education v. Rowley 358 U.S. 176 (1982).

56. See, for example, Levin, Betsy, “Equal Educational Opportunity for Special Pupil Populations and the Federal Role,” West Virginia Law Review 85 (1983), 159–185Google Scholar; and Rothstein, Laura F., “Educational Rights of Severely and Profoundly Handicapped Children,” Nebraska Law Review 61 (1982), 586–620Google Scholar.

57. Yudof, Mark G., “Education for the Handicapped: Rowley in Perspective,” American Journal of Education 92 (1984), 163–177CrossRefGoogle Scholar.

58. Ibid., 174.

59. See, for example, Irving Independent School District v. Tatro 104 S.Ct. 3371 (1984); Smith v. Robinson, Unreported, U.S.S.C. (1984); School Committee of the Town of Burlington v. Department of Education of the Commonwealth of Massachusetts, Unreported, U.S.S.C. (1985).

60. P.L. 94-142 originally stipulated that states were obliged to serve handicapped children who were three to five years old only if the state provided a public education for all other preschoolers.

61. Not surprisingly, the new amendments received a less enthusiastic response from organizations representing school districts, schools and school administrators–that is, those groups and individuals who must find the resources necessary to implement the new law. For example, the Federal Education Department, which opposed the new bill, estimates that the total annual cost of providing special-education services to one preschool-age child is $7,200 U.S. The new bill, however, only provides that states may receive a total of $3,800 U.S. in federal grants for each handicapped child. Viadero, Debra, “Agreement Gained on ‘Far-Reaching’ Handicapped Bill,” Education Week 6, no. 3, September 24, 1986Google Scholar.

62. Dolmage v. Muskoka Board of Education, 2.

63. For a more in-depth discussion of the relationship between the Charter equality rights and the U.S. equal protection provision see Greenwalt, Kent, “A Neighbour's Reflections on Equality Rights,” in Smith, Lynn et al. (eds.), Righting the Balance: Canada's New Equality Rights (Saskatoon: The Canadian Human Rights Reporter, 1986)Google Scholar.

64. Bliss v. Attorney-General for Canada (1978) 92 D.L.R. (3d) 417.

65. Unemployment Insurance Act S.C.1970-71-72, c.48, s.46.

66. Bliss v. Attorney General for Canada, 423.

67. For a more extensive discussion of these distinctions, see Bayefsky, Anne F., “Defining Equality Rights,” in Bayefsky, Anne F. and Eberts, Mary (eds.), Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985), 1–79Google Scholar; and MacKay, A. Wayne, “The Equality Provisions of the Charter and Education: A Structural Analysis,” Canadian Journal of Education 11, no. 3 (1986), 293–312CrossRefGoogle Scholar.

68. See Citron, , The Rights of Handicapped Students (Denver: Educational Commission of the States, 1982)Google Scholar.

69. Hendrick Hudson v. Rowley, 204.

70. Canadian Odeon Theatres v. Saskatchewan Human Rights Commission and Huck (1985) 3 W.W.R., 744–745Google Scholar.

71. This facet of discrimination was addressed by the Supreme Court of Canada in CNR Co.v. Canadian Human Rights Commission and Bhinder, December, 1985, Unreported, (Supreme Court of Canada), and in Ontario Human Rights Commission and O'Malley v. Simpson Sears Ltd., December 1985, Unreported (Supreme Court of Canada). The Court suggested in these two cases that with respect to human rights legislation intent to discriminate is not a necessary element to prove in establishing de facto discrimination. In other words, what is essential is whether the impact or result constitutes de facto discrimination, not whether or not the alleged discrimination is intentional.

72. Komisar, Paul and Coombs, Jerrold R., “The Concept of Equality in Education,” Studies in Philosophy and Education 2, no. 3 (1964), 223–244CrossRefGoogle Scholar.

73. Ibid., 244.

74. Bayefsky, , “Defining Equality Rights,” Equality Rights and the Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985), 24Google Scholar.

75. Section 15(2) provides:

s. 15(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex or age.