Wednesday, September 2, 2009

'All Aboard The Bus' - Some Troubling Thoughts

I put off blogging about this particular issue because, quite frankly, it troubles me. I had hoped that discussing the matter with others in the disability community and taking some time to mull it over myself might help to settle my thoughts, but to no avail.

It started when I stumbled across this story last week - I was completely unaware that Metro Transit had a history of offering blind and visually impaired passengers free passes on the Halifax buses.

Apparently they were about to pull the plug on the practice after receiving "informal complaints from disabled folks who said it wasn’t fair that one group was getting complimentary passes, but not others". Combine the complaints with the fact that some $420,000 in possible revenue was at stake and some feared the die was cast. End of the day, however, Halifax Council, for whatever reason, caved and the free bus passes for the visually impaired continues.

Here's my problem. I really am not sure on which side of this issue I sit, either legally or personally.

Legally, sec. 15(1) of the Charter prohibits discrimination on the basis of "physical or mental disability". So if free bus passes are given out to the blind but not, for example, to the mentally challenged, aren't those with intellectual disabilities being discriminated against?

And legally, is this really any different than allowing a blind person's support person to travel for free without having a similar policy for individuals with other disabilities?

Actually, despite how it may appear at first blush, I would answer probably not.

If a disabled person is unable to access a mode of public transportation (be it bus, aircraft or taxi) without the assistance of a support person, then to make that person pay two fares to access a system that the rest of the public can access by paying only one fare may well be discriminatory.

And if a public transit provider was to have in place a policy whereby they allowed individuals with one type of disability (ie. blindness) to have a support person travel for free but did not allow those with different disabilities (who also validly needed the services of a support person to access the mode of transit) to do so, I would say they were only helping to pound the nails into their own coffin.

But allowing one group of the disabled to travel for free (for whatever noble reasons),while it might be bad public relations in that it could conceivably really irritate and annoy others who are forced to pay full fare, doesn't strike me as being in the same ball pack, from a legal point of view. In my mind, it much more fits the definition of "discrimination", as has been fleshed out by the Supreme Court of Canada, to not offer free passes for anyone who needs a support person than it does to offer free passes only to the blind.

From a personal point of view, I am not much happier.


Cross-posted at A Primer on Special Needs and the Law


Pogue said...

'Legally, sec. 15(1) of the Charter prohibits discrimination on the basis of "physical or mental disability".'

So does that mean you are discriminating against people without physical or mental disabilities by not giving them free access?

Wouldn't it just be easier to provide the same assistance to any defined special needs population? Here we have federal definitions for what constitutes "handicapped" and what special requirements must be in place for them. Or am I missing something and showing my ignorance again...

MMC said...

Pogue, what you're suggesting is that people are being discriminated against on the basis that they are physically or mentally able or, in other words, on the basis that they are not disabled.

Discrimination (which just means treating people differently) is okay as long as you don't discriminate on a prohibited ground (which are race, national or ethnic origin, colour, religion, sex, age, mental or physical disability or what they refer to as an "analogous ground". One example of what has been found to be an annalogous ground is sexual orientation.) So, in other words, it is okay to discriminate against people on the basis that they don't have a disability but not on the basis that they do. Yeah, I know... makes the whole thing sound rather silly when you language it that way.

I left out this piece of the post which I had included on the Special Needs blawg. It sort of talks what about what you mentioned.

It could be argued, I suppose that under sec. 15(2) of the Charter offering free bus passes only to the blind would not be discriminatory as it is a "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, age or mental or physical disability".

Which means that a policy which appears discriminatory on its face is actually okay as long as your goal is to assist a particular group which has been disadvantaged in the past. This is what is commonly referred to as "affirmative action" programs.

But I must say that, legally, I am not sure you need to even get as far as sec. 15(2) to find such a practice non-discriminatory. I think that (rightly or wrongly) it would be found acceptable on its own merits.

I'm still not sure if I completely answered your question or not though.

The idea in sec. 15 of the Charter is basically the same as in your Americans with Disabilities Act, except because it's in the Charter it is part of the Canadian Constitution. But the provincial and federal Human Rights Act basically read the same way as sec. 15 of the Charter. So what I think I am trying to say is that it shouldn't be much different legally here than it is there around this issue.

And yes, I agree, it certainly would be easier to provide the same assistance to any defined special needs population. Altough I think what is legally mandated here in Canada at the moment in that regard is not free bus fare for any person fitting within that population but free bus fare for the support person of any person in that population who needs such a support person with them in order to be able to ride the bus safely due to their disability.

Just reread that. Gawd, I can be wordy. Sorry, but I don't know how else to try to say what I want to convey using text. Something tells me talking in person would be much easier. ;-)


wow, a more complex issue than it looks at first blush, definitely, eh? now not sure where I stand...
and it'll remain just an interesting topic for me, we don't have any public transportation really, or anything like that, here.

but thanks for making me think!

MMC said...

That's just the thing, it is a lot more complex than it first appears. Which is what made me, at least, question my initial reaction. I was finding that the more I debated it with myself, the further I got from figuring out where I stood. In fact, it wasn't until I was blogging the post that I came to my answer.

Which often happens, BTW. I will come across an issue I know I want to blog about but I don't actually decide my opinion (or even where I will go with the topic) until I finish the post. Not sure what to make of that.

Punkys Dilemma said...

Well that's interesting. I really don't know where I stand on this either. Although, at one time I did turn to The Wish Foundation for help for my disabled daughter. They refused me...ok, maybe refused is a bit harsh. They couldn't help me because my daughter was unable to verbally or cognitively make her own wish. I don't know that I felt discriminated against but it left me feeling a tad annoyed. I suppose you have to draw the line somewhere.

So I have to wonder. Because my daughter not only is visually impaired, she's also wheelchair bound. So where does that leave your Metro Transit's regulations? I suppose they would allow a free ride because she would fall under that clause, not sure. But how would that sit with other citizens who are wheelchair bound?

Things that make me go....hmmm....

MMC said...

Punky, in my view of the world, that might leave your daughter paying for her ticket but having a support person ride for free. And, in her case, it sounds pretty obvious that she would need one (being both visually impaired and wheelchair bound).

Part of the argument by those supporting free passes for the visually impaired is that the physically disabled have access to Access-A-Bus (made for wheelchairs but they travel on a special schedle). The problem is that depending on where you live, Access-A-Bus is ususally just for the physically disabled, leaving those who are mentally challenged or perhaps have multiple disabilities out of luck.

It ain't always easy to level the playing field, I suppose.