Disabled Persons and Canadian Law Schools: The Right to the
Equal Benefit of the Law School
M. David Lepofsky*
Introduction
Over the past decade, Canada’s legal establishment, including courts, the
profession and legal educators, has directed unprecedented attention to equality
issues. A decade ago, human rights codes were being expanded across Canada
to outlaw discrimination on grounds which were hitherto unconsidered. Early in
the 1980s, Canada’s constitution was amended to include a supreme guarantee
of equality rights. Policy initiatives in the mid-80s have led to the introduction
of pay equity and employment programs, and to calls for their substantial
expansion.
As the 1980s drew to a close, this increasing attention to equality issues
was directed in a serious way not only to the social institutions to which the law
applies, but, as well, to the very institutions which are responsible for the legal
system itself. Canada has had a number of studies into racial bias against native
persons in the judicial system. Conferences and other activities have drawn
attention to concerns of gender bias in the law, and in the judiciary. As well,
public and professional attention has been directed at Canada’s law schools, to
identify possible barriers to equality inherent in the legal education system.
With this examination of the various institutions in Canada’s legal system
now underway, it is important to ensure that its scope is broad enough to make
certain that the concems of all disadvantaged groups are taken into account. In
this context, it is very much to the credit of the Canadian Council of Law Deans
that the concerns of persons with disabilities in the legal education system were
placed on the agenda at its 1990 Ottawa Conference. Disabled persons are
among the ranks of clients who need the services of lawyers trained in Canadian
law schools. As well, persons with disabilities are among the ranks of those
* LL.B. (Osgoode Hall), LL.M. (Harvard). Counsel, Constitutional Law and Policy Division,
Ontario Ministry of the Attorney General. This is written in the author’s personal capacity and does
not purport to represent the views of Ontario’s Attorney General or his Ministry. This paper was
prepared for a meeting of the Council of Canadian Law Deans held in Ottawa on November 8,
1990.
McGill Law Journal 1991
Revue de droit de McGill
1991]
NOTES
seeking admission to Canada’s law schools, for the purpose of pursuing careers
in the legal profession.
This paper addresses two distinct, thematically-linked questions pertaining
to Canadian law schools and disabled persons. First, it considers how law
schools can effectively accommodate disabled law students in order to ensure
that disabled persons have equality of access to the practice of law. The second
issue concerns how law school curriculum can be shaped to ensure that the law
itself and law graduates, who go on to practice law, are effectively equipped to
serve clients with disabilities.
There are two common denominators among these questions. First, both
are of fundamental importance to the 10 to 15 percent of Canadians who have
a physical or mental disability. Second, both issues have received insufficient
attention to date. This inattention is not the product of any design or desire;
rather, it forms part of a larger trend, whereby disability equality issues have
tended to secure attention much later than equality issues regarding gender, race
or certain other grounds.
The primary focus of this paper is to provide practical recommendations
which can be implemented in Canada’s law schools with dispatch. Only a brief
discussion is provided of the origins of the problems which these recommenda-
tions seek to rectify. Of course, this brevity is not because these problems merit
little attention. Rather, it is because this paper’s discussion refers the reader to
other published sources which can provide a more thoroughgoing description of
the dimension of the problems to which these recommendations pertain. As
well, no assessment is attempted here of which of the recommendations set forth
below are now provided, formally or informally, at any Canadian law school.
The focus of the discussion and recommendations set forth below is exclu-
sively on action that can be taken in and by law schools to address the twin
issues of training disabled persons to practice law and of ensuring that both the
law and lawyers effectively meet the legal needs of disabled persons. Action in
these areas is also required outside of Canada’s law faculties, i.e., by the legal
profession itself, by the provincial law societies, by the courts, and by govern-
ment agencies which are responsible for the administration of Canada’s justice
system. However, these activities and actors are beyond the scope of this paper.
Moreover, in the long run, action in law schools is likely the most critical first
step in fostering reform in these areas.
While this paper’s focus is on issues concerning persons with disabilities,
it should not be inferred that the paper’s themes are only relevant to disabled
persons. To varying extents, similar concerns over law school accessibility and
legal curriculum content can apply to other disadvantaged groups in society. A
principled commitment to the goals of equality and education equity requires a
comprehensive focus on all disadvantaged persons and groups, and not an
REVUE DE DROIT DE McGILL
[Vol. 36
exclusive single-group or single-issue orientation, wherever possible. Indeed,
any effort at opening up the legal education system which focuses only on one
disadvantaged group runs the risk of unintentionally disregarding or marginali-
zing the serious barriers which present themselves to other minorities.
It is hoped that this paper will serve to inform law teachers, law deans, law
school administrative staff and law students about the ways in which Canadian
law schools can widen their focus to include both able-bodied and disabled per-
sons. It is hoped as well that this paper will assist disabled law students and law
school applicants to formulate strategies for succeeding in their legal education.
Finally, it is hoped that this paper, which was originally delivered at a confer-
ence of the Canadian Council of Law Deans in Ottawa on November 8, 1990,
might serve as a yardstick by which future law school initiatives in the disability
area can be evaluated in the months and years after the meeting at which it was
first distributed.
I. Accommodating Disabled Law Students in the Law School
A. Discussion
How can a law school most effectively ensure that disabled students have
equality and equity of access to a legal education, and hence, to the legal pro-
fession? A law school’s desire to effectively accommodate disabled law stu-
dents need not solely be motivated by the legal duty to accommodate, enshrined
in human rights legislation, or by the Supreme Court’s important recognition of
equality of access to the legal profession as a Charter’-protected value.2 It is tied
as well to a fundamental commitment to simple fairness and equity.
When translating this desire into action, five general observations should
be born in mind from the outset. First, there is no magical formula for accom-
modating all disabled students in one fell swoop. Disabilities vary from individ-
ual to individual. While this paper refers to examples of specific accommoda-
tions relevant to certain disabilities, there are a diverse range of needs which can
arise, but which are not individually canvassed here. In addition to the fact that
each disability can present differing accommodation needs, the same disability
can have a very different impact on different persons, depending on a myriad
of factors, such as attitudes, internal and external resources, social support and
general environment and the availability of training and accommodation tech-
niques.
‘Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule
B of the Canada Act 1982 (U.K.), 1982, c. 11 [hereinafter Charter].
2Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 56 D.L.R. (4th) 1 [herein-
after Andrews cited to S.C.R.].
1991]
NOTES
Thus, effective accommodation is often the product of open-mindedness,
“adhocracy,” and ongoing trial-and-error experimentation. It is usually not the
product of a simple, once-and-for-all quick fix, with the possible exception of
the removal of physical barriers to wheelchair access.
Second, while it is often fair to expect a disabled law student to play an
active role in finding solutions to accommodation issues, the law school must
take positive action and primary responsibility in advance to assist students in
searching for effective accommodations, and to ensure that once found these
solutions work to their maximum effectiveness. This is so because a newly
admitted law student will not necessarily know all of the ins-and-outs of law
school when he or she first arrives, so as to be able to quickly identify the most
effective accommodations on his or her own. Hence, the recommendations
below are generally organizational and structural in focus.
Third, the greatest barrier to reasonable accommodation of disabled per-
sons generally is neither financial nor technological. The greatest barrier in soci-
ety tends to be attitudinal. Most barriers confronting disabled persons can be
readily eradicated if sufficient attention and imagination is applied to the
problem.
However, accommodations are often missed or refused because the matter
is considered of insufficient importance, because of an incorrect presumption
that no effective accommodation is available, because of an unfounded pre-
sumption that such accommodations necessarily involve excessive costs, or
because expenditures, if required, are considered to be low in priority. In con-
sidering a school’s spending priorities vis-a-vis the following recommendations,
a faculty should reflect on how many resources were channelled to these disa-
bility issues in the past. As well, the fact that many if not most of these recom-
mendations involve little or no cost whatsoever should be remembered.
Fourth, with a scarcity of resources confronting all law schools, and with
disabled law students and lawyers spread out across this enormous country, it
will be difficult to ensure that new, incoming law students can benefit from the
successful accommodations fashioned by others in the past. Hence, it is essen-
tial to co-ordinate efforts among all law schools, and to keep all posted on the
experience gained at each faculty.
Fifth, as technology for disabled persons rapidly develops, approaches to
accommodation will evolve commensurately. Yesterday’s workable accommo-
dation may be today’s antique. As well, yesterday’s insurmountable barrier may
be today’s easily conquered challenge.
The following is a non-exhaustive list of key recommendations in this area.
They are not set out in order of importance. It is strongly recommended that in
addition to these steps, each law faculty carefully review the excellent discus-
McGILL LAW JOURNAL
[Vol. 36
sion of this topic by David M. Engel and Alfred S. Konefsky in “Law Students
with Disabilities: Removing Barriers in the Law School Community.”3 This arti-
cle provides clear, hands-on examples of barriers confronted by disabled stu-
dents in American law schools, and helpful descriptions of effective accommo-
dations to remove these barriers. As well, further information in this area should
be sought from the American Association of Law Schools, since American
schools have been training disabled law students for many decades.
B. Recommendations
1. Each law faculty should adopt a formal policy which undertakes that all
disabled law school applicants and law students will be afforded reasonable
accommodations to their needs, to ensure that they have equality of access to
legal education and to the legal profession. Faculties should set out this policy
in major law school publications, such as course catalogues and application
forms, so as to educate students and potential applicants about their entitlements
and opportunities.
2. Each faculty should designate a senior-ranking faculty member, such as an
associate dean, as the faculty’s official ultimately responsible for ensuring the
accommodation of disabled students. An appropriate title for this position might
be “Disabled Students’ Access Co-ordinator.” This person should be readily
available to disabled law students and applicants for admissions. He or she
should serve both to provide information about available accommodations and
to authoritatively intervene in the school bureaucracy to ensure that needed
accommodations are identified and implemented. Disabled students and appli-
cants should only require “one stop shopping” wherever possible when trying
to locate information about accommodations, and when trying to break bureau-
cratic impasses. This will help avoid unnecessary “run-arounds,” where the stu-
dent is told that a particular accommodation issue is “not my department” by
various university officials.
This Co-ordinator should be clothed with authority to speak on the dean’s
behalf, and to direct the taking of effective action; the role should not be simply
advisory. Short of the dean’s own responsibility, the Co-ordinator should have
ultimate responsibility to ensure that reasonable accommodation is made to dis-
abled law students and law school applicants. This activity could be undertaken
in the context of a larger law school initiative aimed at ensuring education
equity for all disadvantaged minorities in the law school, if the faculty is dis-
posed to undertake a wider education equity initiative.
The Co-ordinator should maintain ongoing contact with his or her counter-
parts at other law schools, so each can learn from the experiences of others.
3(1990) 38 Buffalo L. Rev. 551.
1991]
NOTES
3. To assist the Co-ordinator, the faculty should establish a committee com-
posed of faculty members, administrative staff, and law students, whose man-
date is to identify barriers to access in the law school admissions system, teach-
ing processes and student evaluation methods, and to recommend to the
Co-ordinator methods by which these barriers can be removed. This committee
can contribute substantially towards the goal of making the law school more
accessible in advance of the admission of any particular student with a disabil-
ity. The committee can also be available to assist the Co-ordinator with individ-
ual issues as they arise.
4. Each faculty should adopt a dual “mentoring” system for disabled law stu-
dents. Each disabled law student should be offered two mentors at the school,
to be available to them shortly before the commencement of first year studies,
and throughout their legal education. The first mentor should be a faculty mem-
ber. This person should be selected on the basis not of seniority, but rather, of
appropriateness for a close one-to-one relationship with the student. The second
member should be an upper year law student selected according to the same
criteria.
The function of each mentor is to meet with the disabled student from time
to time for the purpose of monitoring his or her progress and helping identify
and solve problems. Mentors would be available to the disabled law student on
an ad hoc basis as well as for addressing individual matters as they arise.
The role of the Co-ordinator is largely administrative. In contrast, these
mentors would function in a more individualized and informal counselling role.
5. As soon as it becomes apparent to a law school that it has admitted a dis-
abled student, or that a disabled person is seeking admission, efforts should be
made to put that disabled person in touch with similarly disabled lawyers, or law
students who are further along in their legal education. Disabled lawyers and
law students are thinly scattered across Canada. It is not easy for a disabled
newcomer to the legal education system to track them down. As well, the stu-
dent might be hesitant about approaching more senior disabled students or law-
yers on his or her own initiative unless a contact is made in advance to ensure
that the inquiries are welcomed. The school should take positive steps to locate
these persons, to make connections, and to inform the disabled newcomer that
disabled lawyers and advanced law students would welcome their inquiries.
6. Each law school which is not now fully accessible to mobility-impaired stu-
dents should forthwith take steps to ensure that all facilities in the school are
made physically accessible as soon as possible. Physical accessibility cannot
simply be measured either by existing statutory standards (such as by those
found in local building codes) or by existing policies or standards mandated by
university head offices. These standards are often insufficient. For example,
they often address only accessibility requirements of persons who use a wheel-
REVUE DE DROIT DE McGILL
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chair. Persons with visual impairments also have often unrecognized physical
accessibility requirements. As well, existing legal or university policy standards
may be inadequate to meet the actual needs of mobility impaired students.
A school’s physical accessibility can be assessed in a rough way on a three-
level scale. Each faculty’s goal should be to achieve the first level of accessi-
bility as soon as possible. At this level, a school is fully accessible providing
disabled students with full and equal access to all parts of the facility, with dig-
nity. Access to buildings can be obtained through the main entrances which all
students use, and is not available solely through remote service entrances. A stu-
dent has a full choice of seating in a classroom. A disabled student can get to
any part of the facilities that can be reached by an able-bodied student. At this
point, the disabled student has true equality of opportunity at the law school
insofar as physical access is concerned.
At the second level, a school is sufficiently accessible that a wheelchair-
using student might not be entirely dissuaded from applying to the school
because of physical barriers. However, there are places in the facility which a
disabled student cannot reach. As well, those places which are accessible are not
necessarily open to the student’s access in a full, equal and dignified manner.
In such a facility, a mobility-handicapped student is placed in a second-class sit-
uation. His or her legal education experience is subject to real and practical
barriers.
At the third and lowest level, a law school is functionally inaccessible. A
disabled student, using a wheelchair, would not be able to participate in the legal
education program, short of being carried around the building.
In the long run, full physical accessibility can require large-scale physical
retrofitting. In the short term, this can be fostered or achieved in part by smaller-
scale physical changes. It can also require the school to adopt a policy that spe-
cific class locations will be changed, where a disabled student requests admis-
sion to a particular course, and where that course is currently intended to be
offered in a classroom which is inaccessible. Where faculty offices are inaccess-
ible, faculty members should advise disabled students that they are prepared to
meet them in alternative, accessible and private locations, when students wish
to avail themselves of office hours. In such circumstances, private office space
should be made available.
Information about effective physical accessibility standards can be
obtained from disability service agencies, disabled persons’ consumer groups,
and from direct consultation with disabled students themselves.
7. Law schools should review their admissions processes and criteria to ensure
that disabled applicants to law school have full and equal access to the scarce
places in these faculties. For example in Ontario, one law school is entirely
1991]
NOTES
inaccessible to wheelchairs. Hence, a disabled law school applicant can only
compete for a lesser number of places in Ontario law schools than can an able-
bodied student. Accordingly, those schools which are now fully or partially
accessible should consider adoption of an affimative action admissions policy
regarding applicants whose disability precludes them from applying to an inac-
cessible school. In recognition of the fact that law school applicants ordinarily
pepper many if not most schools with applications, with the hope of getting in
somewhere, these admissions criteria should be adapted so that disabled stu-
dents4 have an equal shot at getting a place in a law school somewhere.
This recommendation is not intended as a substitute for the previous rec-
ommendation that all law schools achieve a condition of full accessibility; it is
merely a stop-gap measure.
It is also not intended by this recommendation that any individual faculty
or group of faculties be designated as special facilities for disabled students. It
is not desirable to concentrate or “ghettoize” disabled students in a small group
of schools. Rather, the ultimate goal is to ensure that disabled applicants have
the same full range of educational options as are open to able-bodied students.
8. Each faculty should also examine its law school admissions criteria and
standards to ascertain whether they contain any unintended barriers to equality
of access for disabled students. Where such barriers exist, they should be
removed, or avenues for accommodation of disabled students should be fash-
ioned. For example, the traditional LSAT test can pose a barrier to students who
are either visually handicapped, otherwise print-handicapped, or learning disa-
bled. Accommodating these students may require an alteration of the test, or its
waiver in specific cases.
9. To accommodate those students whose disabilities preclude the completion
of a law degree in the usual three year period, each faculty should adopt a policy
permitting the degree to be completed over a longer period. For example, this
might be necessary for some persons with multiple sclerosis who may experi-
ence periods of fatigue which can preclude carriage of a full course load. It may
also be required by a newly disabled person who is undergoing an adjustment
to his or her condition, or to a person whose pre-existing disability has become
more severe while at law school. This recommendation does not seek to reduce
the standards of achievement which a law school should expect of a disabled
student. Rather, it seeks only to ensure that the student is afforded a fair oppor-
tunity to learn and to demonstrate his or her academic achievement free from
unnecessary barriers.
4This recommendation would not apply to all disabled students. For example, the presence of
a flight of stairs in front of a building constitutes a serious barrier for persons using a wheelchair.
However, it poses no barrier for a visually impaired person.
McGILL LAW JOURNAL
[Vol. 36
10. Each school should adopt a range of specific policies and measures to
assist print-handicapped students,’ the school should adopt several measures to
ensure their effective access to case books and other reading materials in a
usable form. These can include, among other things, the following:
a. Ensure that print-handicapped students receive prompt and automatic
placement in the courses which they have selected, without any need
to participate in a lottery process. This will give them a head start on
getting casebooks translated into an accessible medium. Such tran-
scription is usually an extremely time-consuming process. Thus,
advance placement in courses is a critical pre-requisite to equality of
opportunity.
b. Require faculty members to have their casebooks prepared well in
advance of the term in which they are to be used, so that they are
available to print-handicapped students with sufficient time to ensure
their transcription into a usable medium. The current practice of
some law teachers, whereby casebooks are prepared or finalized at
the last minute, constitutes a serious barrier to access for print-
handicapped students.
As a secondary, and substantially inferior measure, the law school
administration could provide print-handicapped students with assist-
ance in choosing those courses and professors who are more likely to
have their casebooks ready well in advance of the term. Such stu-
dents could be directed away from those courses and teachers who
prepare their materials at the last minute, except where the reading
load for such courses is light, where the student has a strong desire
to take the course in question, and where rapid transcription services
are available. This alternative is inferior and undesirable, since it can
perpetuate print handicapped students’ inequality of access to the
courses they wish to take.
c. Designate a staff member to recruit volunteer readers in the school,
through announcements in classes, posting of ads, and placement of
ads in student newspapers. As well, the faculty should assist the stu-
dent in securing financial resources needed to hire readers.
d. Designate one or more library staff members to assist print-
handicapped students in learning to use the law library. These staff
members should be available on an ongoing basis to assist students
with getting access to print materials.
5The term “print-handicapped” refers to persons who, because of disability, are incapable of
reading ordinary printed materials. These persons include, e.g., those who are blind, partially
sighted, dyslexic or otherwise learning disabled, and those who, because of muscular or other
motor impairment, cannot handle printed text or turn pages.
1991]
NOTES
e. Ensure library policies regarding “reserved books” are waived when
a print-handicapped student needs to remove a book from the library
premises to have it brailled, read onto tape, reproduced in large type,
or scanned onto computer disc.
f. Provide print-handicapped students with assistance where needed in
photocopying materials so that these can be taken to another location
to be translated into a useable medium.
11. Each faculty should adopt a policy providing that where a disabled law
student cannot, because of disability, take examinations in the conventional
manner, the school will enable the student to take the examination in an alter-
native manner, which is effective at fully and equally testing his or her legal
knowledge and analysis. Possible accommodations in this area can include the
following:
a. Visually impaired students can be provided with their examinations
in braille through available transcription services. Similarly, they can
be given examination questions on tape, through the use of a volun-
teer reader during the examination period.
b. Low vision persons can be given questions in a large print format.
c. Persons incapable of hand writing can be permitted to take examina-
tions on a print typewriter. Persons unable to use a print typewriter
can be permitted to use adapted computer equipment, or can be
allowed to dictate their answers to a secretary who can take dictation
and transcribe the answers.
d. Time limits for each examination can be extended to ensure that dis-
abled students have adequate time to prepare their answers.
e. A disabled student can be permitted to take the examination at an
alternate location, such as his or her home or dormitory room, so that
he or she can make use of adaptive equipment, computers, and the
like.
f. The school can provide students with a reader and/or monitor who
can bring the examination paper to their home, read the questions to
them, and help with access to printed materials during open book
examinations. The student could be allowed to recruit this assistant,
if desired.
g. Where alternative means for examination writing are ineffectual, the
instructor could administer an oral examination. This would apply,
for example, where a print-handicapped student takes a tax or
accounting examination which involves extensive transcription of
numbers. In tax or accounting examinations, the examiner’s goal is
REVUE DE DROIT DE McGILL
[Vol. 36
to ascertain whether the student is equipped to undertake the requisite
analysis. This is often done through written questions which require
detailed analysis of numbers, and in the case of accounting, through
the preparation of financial statements. If it is not practical for a
print-handicapped student to prepare these documents in a form
which is readable by a professor, an oral examination may be the
only way for the student to effectively demonstrate to the professor
the level of his or her analytical abilities.
h. Where a student’s examinations are scheduled back-to-back, the
examination schedule can be modified for those disabled students so
requiring, to ensure that they have reasonable time to prepare for
each examination, having regard to their special needs. This could be
especially important for students whose disability can cause signifi-
cant fatiguing.
12. Each faculty should take steps to have its student organizations ensure that
in all organized student activities operated in connection with the law school,
disabled students are provided with reasonable accommodation to ensure their
opportunity to fully participate in all aspects of student life. Organized student
activities can play a vital role in the disabled law student’s educational experi-
ence, for reasons additional to those applicable to all law students generally. For
example, through these activities, disabled law students can make contact with
other students who can be recruited as volunteer readers and assistants.
To ensure maximum opportunities for participation in student activities, the
law school should:
a. require that organized student activities be held in physically-
accessible premises. Where no such facilities are available in the law
school building, efforts should be made to find alternative, accessible
facilities on campus to hold these events;
b. make information about upcoming student activities available to
print-handicapped students in a useable form. For example, a tele-
phone answering machine can be made available with a law school
newsline, reciting announcements of weekly events. Alternatively, a
law school secretary could be assigned to read major posted
announcements to print-handicapped students, when required;
c. in the case of student legal aid clinics, clinic staff and senior law stu-
dents should arrange for a mentoring or “junior/senior” relationship
to be established for disabled students wishing to do volunteer legal
aid work. By this means, disabled students can experiment with tech-
niques for accommodating themselves in their practice in real cases,
1991]
NOTES
with the assistance and oversight where needed of a more experi-
enced clinic worker.
While student legal clinic work and volunteer mooting programs are edu-
cationally worthwhile for any student, they are especially important for disabled
students during their law school training. This is because these activities provide
an excellent opportunity to acquire practice skills and evolve techniques for
accommodating their disability with appropriate supervision. This experience
with practice can be critically important when the disabled student goes for job
interviews and faces a prospective employer’s questions about his or her ability
to function in a practice environment.
13. Law schools should ensure that student housing authorities at the univer-
sity provide disabled students with priority access to student housing, and that
sufficient physically accessible student housing is available.
14. The Disabled Access Student Co-ordinator should arrange to have a per-
son available to orient visually-handicapped students to the school’s facilities on
initial arrival at the school in first year. Such services may be available, though
unevenly, through the Canadian National Institute for the Blind or other disabil-
ity service agencies. In addition to tapping these agencies’ resources where
practically available, the school should make staff and/or upper year students
available to assist in this orientation and mobility process. For a newly-blinded
student, the assistance of a professional mobility instructor may be needed. A
person with good pre-existing mobility training can often have their orientation
needs satisfactorily met by a thorough tour by an untrained guide, such as a fac-
ulty member or sighted student.
15. Each faculty should assist disabled students in making contacts with prac-
tising lawyers, in order to smooth the difficult process of seeking articling posi-
tions, summer jobs, and ultimately, permanent jobs. These contacts are prefer-
ably made early in the law school process, so that the student can build upon
them. This recommendation is motivated by the need for disabled law students
to overcome barriers in the job-seeking process, and to assist them in develop-
ing a bank of strategies for coping with actual practice situations while they are
still in law school. This pre-planning is critically important to disabled law stu-
dents, since they will wish to undertake job interviews, and later to enter the
workforce with an ability to identify and circumnavigate physical and attitudi-
nal barriers to full integration.
Those practising lawyers with whom contact should be made need not be
restricted to lawyers with disabilities. Specifically, these contacts should be
largely comprised of able-bodied lawyers who have experience with practice
and familiarity with the bar.
McGILL LAW JOURNAL
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16. Each faculty should adopt a policy requiring that any legal education
activities which the faculty sponsors or organizes should be convened in phys-
ically accessible facilities. Law schools and law professors are active in orga-
nizing and convening law conferences for legal academics and the practising
bar. In selecting facilities to host these events, due regard should be paid to the
need to ensure that disabled persons can attend and participate fully and equally
in these events. Unless this is enunciated as a matter of firm school policy, it
will likely be overlooked or neglected in the excessive rush that attends the
organization of such events. As the flagships in the field of legal education law
schools should attempt to set a positive example in this context.
17. Each faculty should produce a brochure which lists services and facilities
available to accommodate disabled students at the law school. This brochure
should be circulated to all faculty members, to interested groups within the uni-
versity, to disabled students at the law school, to disabled law school applicants,
to other law faculties in Canada, and to community groups with contacts within
the disabled population of Canada. This measure will help ensure that once
accommodations are implemented at the law school, those who could benefit
from them will be able to discover their existence.
C. Summary
The result of an effective implementation of these recommendations would
be to transform Canada’s law schools into facilities which can readily welcome
persons with disabilities as students. They would also increase the capacity of
these schools to bring disabled persons into their legal clinics as clients. As is
evident from the preceding discussion, the effective eradication of barriers to
the full participation in law school by persons with disabilities cannot and
indeed should not await the advent or initiative of individual disabled students.
Because the barriers to access are themselves systemic, their removal must as
well be systemic and systematic.
II. Training Lawyers to serve Disabled Clients
A. Discussion
As indicated previously, fully 10 to 15 percent of Canada’s population have
a physical or mental disability. They have consistently suffered from conditions
of chronic poverty, have suffered from excessive dependency on public assist-
ance, and have achieved exceptionally high unemployment rates which are mul-
tiples of the national average. As well, they are often far more dependent on
insensitive and unresponsive government and private charitable bureaucracies
and on health care professionals than are the majority of Canadians. They con-
front massive obstacles to their full and equal participation in society’s oppor-
1991]
NOTES
tunities despite major medical and technological advances which can often lib-
erate a person from many, if not most, of the limitations thought to be intrinsic
to his or her disabilities. Of these, one of the greatest barriers is prevailing pub-
lic attitudes towards disabled persons, which underestimate their abilities, which
overestimate the costs of their accommodation, and which frequently ignore
their desire and need to fully participate in the mainstream of Canadian life. In
Charter-era parlance, disabled Canadians clearly constitute a “discrete and insu-
lar minority.”6
As a consequence of the situation confronting disabled persons, they are in
a position of special need for access to effective legal services. In addition to
the plethora of legal problems which confront able-bodied persons, disabled
persons often require legal assistance in dealing with welfare, health, institu-
tional and other bureaucracies. They require legal services to contest their fre-
quent victimization by discrimination at the hands of employers, landlords and
service providers. They need effective representation in the governmental and
legislative arenas, to ensure that when laws and policies are formulated, they are
sensitive to the need to ensure opportunities to disabled persons for full partic-
ipation in society.
While disabled persons have a heightened need for effective legal services,
they have tended to be substantially under-serviced by the legal profession. This
was the conclusion of a judicial inquiry into the provision of legal services to
disabled persons in Ontario, conducted by Judge Rosalie Abella in 1982 on the
appointment of Ontario’s then Attorney General Roy McMurtry.7 The Abella
Report (which preceded Judge Abella’s well-known Royal Commission on
Equality in Employment that recommended the adoption of employment equity
programs8) identified that legal services are often provided in venues which are
inaccessible to disabled persons, that lawyers are for the most part unfamiliar
with legal matters particular to disabled persons, and that both law schools and
law societies fail to adequately educate law students to serve the legal needs of
disabled Canadians. In addition to these barriers, the obstacle of costs cannot be
underestimated. Legal services provided by the private sector, outside the legal
aid context, are very expensive. Disabled persons are often very poor.
The Abella Report includes a specific chapter which deals with legal edu-
cation and the provision of legal services for disabled persons. In material part,
the Report recommends as follows:
6Andrews, supra, note 2 at 153, Wilson J.
7Ontario, Report of the Study Into Access to Legal Services by the Disabled (Toronto: Queen’s
Printer for Ontario, June 1983) (Chair: R.S. Abella) [hereinafter Abella Report].
8Report of the Commission on Equality in Employment (Ottawa: Supply & Services Canada,
1984) (Commissioner: R.S. Abella).
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(Vol. 36
3. Law schools should develop special courses dealing with the legal needs of the
handicapped and disabled. 9
4. Law schools should integrate problems and situations involving the legal needs
of the handicapped into other courses, such as constitutional law, criminal law or
family law.’ 0
It is a fair assessment that to date, these particular recommendations have
generally not been implemented by Canadian law schools. Indeed, it is likely
that many if not most persons occupying positions of authority on law school
faculties have been unaware of these recommendations, and were likely
unaware of the existence of the Abella Report. Thus, with some exceptions, it
is likely that the focus of law school curricula continues to be on the law as it
applies to able-bodied persons. Legal education also continues to operate on the
implicit assumption that the client whom a lawyer serves is able-bodied, and has
both the legal needs and the capacity to avail him or herself of legal services of
an able-bodied person. Indeed, the only disability-related subject which a law
student is likely to learn about for certain during his or her legal education is
the subject of criminal insanity –
an area of law which has historically
reflected the stereotypical perception of mentally disordered persons as tending
to be uncontrollably dangerous.
In addition to a focus on the provision of specific legal services to disabled
persons, an outstanding concern in the area of legal education and disabled per-
sons is the pre-existing attitudes of law and of the judiciary towards persons
with disabilities. It is well recognized that law schools can serve the important
roles of contributing to legal scholarship, to law reform, and to the public’s,
court’s and legal profession’s understanding of law and the justice system. In
this context, legal scholars and advocates addressing gender equality concerns
have brought to the attention of the public and the legal community important
and serious concerns regarding the attitudes of the law and of courts towards
women, as is reflected in legislation and legal doctrine.
A similar focus is warranted in the disability context. Our law, our legal
thinking, and our justice system tend to reflect prevailing negative and
unfounded stereotypes about disabled persons. Law schools should be encour-
aged to address both academics’ and classroom attention to this problem, to its
origins, to its manifestations, and to its elimination.
Perhaps the most pointed if not the most extreme example of such attitudes
in the disability context is provided by one of the United States’ most respected
and revered judges, Oliver Wendell Holmes. In the case of Buck v. Bell,” the
United States Supreme Court considered a constitutional challenge to a law
9Supra, note 7 at 145.
10lbid.
“274 U.S. 200 (1926).
1991]
NOTES
authorizing the compelled sterilization of certain mentally handicapped persons.
The appellant, one Carrie Buck, was mentally handicapped. She was the daugh-
ter of a mentally handicapped parent. Ms. Buck also had a mentally handi-
capped child. The court upheld the law’s constitutionality. In supporting the
law’s justifiability, Justice Holmes stated on behalf of the Supreme Court that
“[t]hree generations of imbeciles are enough.”‘2
As a result of the foregoing, recommendations are offered here which pro-
vide means for law schools to help equip lawyers with knowledge and skills
needed to effectively serve disabled clients, and hence, to foster their access to
justice. As well, these recommendations focus on action concerning legal
stereotyping of disabled persons.
B. Recommendations
18. Each law faculty’s curriculum committee or other appropriate body should
establish as faculty policy that the school be committed to the goal of ensuring
that a comprehensive legal education shall include training in the provision of
legal services to disabled persons. Law teachers should be encouraged to
include materials in their courses which would contribute to this objective,
where appropriate. This includes training in the following areas:
a. substantive law of special concern to disabled persons, as is
described further below;
b. specific aspects of legal ethics, professional responsibility and prac-
tice which pertain to the serving of disabled clients;
c. legal, legislative and judicial perceptions of, and attitudes towards,
persons with disabilities; and
d. the way in which disabled persons experience the law and the justice
system, including the barriers to access to justice, and the attitudinal
barriers to equality.
19. Faculties should approach instruction in the foregoing areas through a
“mainstreaming” philosophy. This curriculum should not be reserved for a spe-
cialized course in “Disability Law” which would only be taken by a select
minority of law students. Rather, where appropriate, this curriculum should be
integrated into existing law school courses, and especially into those courses
which are compulsory, or which are taken by the vast majority of students dur-
ing their law school training. This is not to suggest that faculties should not
develop and offer students a specialized, advanced seminar on disability and the
law. Such a course would be highly worthwhile. However, it should not serve
‘ 2%bid. at 207.
McGILL LAW JOURNAL
[Vol. 36
as a total or partial substitute for the incorporation of disability related materials
into existing courses.
20. Substantive legal topics which should be considered for infusion into law
school curriculum include the following non-exhaustive list:
a. Introductory and advanced administrative law courses could include
study of regulatory agencies of particular importance to disabled per-
sons, including human rights commissions, welfare agencies, psychi-
atric detention review tribunals, and school boards;
b. Family law courses could examine family law issues faced by disa-
bled persons, including their capacity to enter into legal matrimonial
relations, their capacity to enter into matrimonial contracts, education
rights of disabled children, and custody and support issues arising in
the case of disabled family members;
c. Introductory and advanced constitutional law courses could include
a study of constitutional issues pertaining to disabled persons, includ-
ing the scope of Charter s. 15’s equality rights guarantee to disabled
persons, 3 and the impact of Charter s. 714 on criminal, civil and
administrative proceedings targeted at the detention or treatment of
disabled persons;
d. Basic and advanced tort courses could examine the treatment of dis-
ability in tort law, including the assessment of damages for personal
injuries or death in the case of disabled persons (which now includes
a number of stereotypical presuppositions about life with a disabil-
ity), alternatives to traditional tort law for income maintenance for
disabled persons, the duty of care concerning disabled plaintiffs in
negligence law and the foreseeability of disabled plaintiffs. As well,
an examination could be provided of tort concepts of “consent” as a
defence to intentional torts such as battery, as it relates to mentally
handicapped persons, and the legislative provisions regarding substi-
tutional consent;
13S. 15(1) states:
Every individual is equal before and under the law and has the right to the equal pro-
tection and equal benefit of the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour, religion, sex, age or
mental or physical disability.
14S. 7 states:
Everyone has the right to life, liberty and security of the person and the right not to
be deprived thereof except in accordance with the principles of fundamental justice.
1991]
NOTES
e. Introductory contracts courses could include an examination of the
law’s treatment of mentally handicapped persons’ capacity to
contract;
f. Feminist jurisprudence courses could include a comparison of judi-
cial and legal attitudes towards disabled persons and those attitudes
towards women, as well as the impact on legal and judicial attitudes
of the compounded situation confronting disabled women;
g. Introductory and advanced criminal law courses could examine the
treatment and perceptions of disabled persons inherent in the crimi-
nal law, both in the case of disabled accused persons and disabled
victims of crime. Alongside the traditional examination of the insan-
ity defence and its relationship to mens rea and criminal responsibil-
ity doctrine, these courses could explore the related topics of judicial
and legal stereotyping of mentally disordered persons, the compara-
tively disadvantageous law pertaining to mentally disordered persons
found unfit to stand trial, or found not guilty by reason of insanity,
and the law’s deferential view of psychiatric evidence in this field;
h. Estates and trusts courses could include a component examining the
special aspects of estate planning for disabled dependents, as well as
an examination of the law governing the management of the property
of “mentally incompetent” persons, so labelled;
i. Courses on employment law, law and discrimination, and equality
rights can include a component addressing legal doctrines concerning
legal protection against discrimination based on disability, the con-
cept of reasonable accommodation as applied to disabled persons,
and the practical barriers to the enforcement of disabled persons’
human rights;
j. Tax law and tax policy courses, could consider the tax position of dis-
abled persons and its interplay with income support legislation and
programs;
k. Law and poverty courses could include a section addressing the spe-
cific poverty related issues confronting disabled persons, such as the
barrier to the pursuit of employment created by certain social assist-
ance schemes, and the impact of sheltered employment regimes on
disabled persons’ poverty.
21. As well, law school courses dealing with subjects of procedure or practice
could be infused with curriculum components regarding disability issues. The
following is a non-exhaustive list of topics which could be covered in basic and
advanced civil procedure courses, basic and advanced criminal procedure
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[Vol. 36
courses, courses on legal ethics, professional responsibility and the legal profes-
sion, and advanced advocacy seminars:
a. The current, insufficient level of legal services for disabled persons,
and the lawyer’s ethical obligations to ensure that all, including the
disadvantaged, secure adequate legal representation;
b. The barriers to legal services which now confront disabled persons,
and the means by which such barriers can be reduced or eliminated;
c. Legal and practical considerations regarding the taking of instruc-
tions from disabled clients, including the capacity to instruct, the
securing .of interpreter’s services for clients with communication dis-
abilities and the preservation of client confidentiality for clients with
communication or cognitive impairments;
d. Legal, statutory, judicial and social attitudes towards disabled per-
sons, and their adverse impact on a disabled client’s access to justice;
e. Other barriers to access to justice for disabled persons, including
(among others) physical barriers posed by inaccessible court
facilities;
f. Familiarization with the disabled person’s own perspective on access
to legal services, and with attitudes towards disability, through oppor-
tunities to meet and interact with disabled persons;
22.
In order to facilitate the most expeditious development of course materi-
als, casebook chapters and the like to assist in the teaching of the matters
described in the two preceding recommendations, the Canadian Council of Law
Deans, the Canadian Association of Law Teachers/Association canadienne des
professeurs de droit, and other interested groups should form a committee of
interested academics and others. This committee could prepare casebook chap-
ters dealing with disability issues which could be circulated to all law schools,
and made available for use by those professors wishing to take advantage of
such resources. This would avoid duplication of effort, maximize the chances
that this material will in fact be infused into law school courses quickly, and
leave to the individual instructors the full final say over the contents of their
courses. In addition to legal academics, the committee should include members
of the disabled community, to help ensure that the materials developed are accu-
rate and appropriate. These persons should be selected in a fashion which
ensures that the course materials which are developed reflect the needs of per-
sons having a wide range of different disabilities.
The committee could seek funding for such research from public and pri-
vate sector funding sources, where needed. A key player in such efforts could
be those legal organizations which specialize in disability rights issues, includ-
1991]
NOTES
ing the Canadian Disability Rights Council and Toronto’s Advocacy Resource
Centre for the Handicapped. In fashioning curriculum content on disability
issues, it is critically important to secure the input of disabled consumers them-
selves. They are in the best position to articulate their needs and to ensure that
materials are presented in a sensitive and appropriate fashion.
23.
In addition to the preceding recommendation, each faculty should set up
its own internal committee to ensure that the law school’s curriculum ade-
quately addresses disability issues referred to above. This committee could
assist in the development of casebook chapters, especially if no inter-school ini-
tiative in this regard is undertaken.
24. Each faculty should review its curriculum’s clinical legal education com-
ponent to ascertain the extent to which students in such programs are exposed
to the provision of legal services to disabled persons. An effort should be made
to infuse disability related curriculum into such programs where appropriate and
feasible.
25. Each faculty should commit its student legal aid clinic to the goal of being
fully equipped to serve disabled clients, both with mainstream legal problems,
and with specialized legal matters associated with their disabilities. Faculties
should investigate their student legal aid clinics to determine:
a. whether it is accessible to physically disabled clients;
b. whether its staff know how to secure interpreter services for deaf cli-
ents, and other accommodations needed to communicate with disa-
bled clients;
c. whether, and to what extent, its training programs and manuals
include components on the provision of legal services to disabled cli-
ents, and
d. the extent to which it has brought its services to the attention of
groups and agencies which are in close contact with the community’s
disabled population.
Steps should then be taken where required to implement improvements in
each of these four areas.
26. Law schools should encourage their faculty members and students to
undertake research in areas of the law which are especially pertinent to disabled
persons, and to endeavour to have this research published. This is in conformity
with the law school’s traditional role as a source for innovative legal scholarship
which can contribute to law reform through legislation and litigation.
27. Law faculties should keep each other posted about initiatives in each of
these areas, so that each can learn from the experience of others.
McGILL LAW JOURNAL
[Vol. 36
C. Summary
As in the case of accommodations for law students with disabilities, the
adjustment of law school curriculum should be systemic and systematic, for it
to be effective. If it is left entirely to individual law teachers, without any lead-
ership from law faculty deans and administration, it will likely not occur with
sufficient breadth.
Conclusion
The foregoing is clearly not intended to be exhaustive. As measures such
as these are examined and implemented, new insights will inevitably arise, and
will merit attention. Whatever steps are ultimately implemented, it is urged that
action in these areas is overdue. Any effort at implementing these recommen-
dations should be action oriented, with an emphasis placed on achieving results
as expeditiously as possible. This paper was delivered to a meeting of Canada’s
law deans in November of 1990. It would be worthwhile for them to meet again
in the near future to ascertain what successes have been achieved in this area.
