Legislating Access

Image from The Star with the text "No Justice" written over top

A complicated and sad story has come to an end in Toronto as an elderly couple’s illegal $80,000 two-storey addition is now required to be demolished after years of legal battles to maintain the structure on compassionate grounds. While I’m not versed in this specific case and can’t say whether this is the right or wrong call, I do think it opens an interesting conversation on the “duty to accommodate” and what some call “the government of disability.”

Painting of Louis XIV of France
The King of Crushed Velvet knows how to party. Look at all that sexy leg.

Without going into too much theoretical detail, Michel Foucault’s concept of biopower is gradually gaining traction within the field of Disability Studies and provides an interesting explanation as to why (and how) we legislate life with a disability. In what I would argue is the culmination of his work on power and control, my interpretation of Foucault’s idea of biopower essentially focuses on the reality that those who hold power in a society must develop complex systems and structures in an effort to maintain their powerful position. In the age of monarchs, power was maintained through land ownership and indentured slavery–either you followed the rules and toiled in the fields for your masters or you died. As we moved away from monarchy toward the democratic systems we know today in Western society, new forms of having and exercising power have evolved, specifically in the form of government legislation. If a government was to rule the people, it must make rules to control the people, rules that if broken would result in a series of financial and/or freedom reducing consequences. We all happily agree to the rules, rules we authorized indirectly through electing leaders and forms of political engagement, so this whole system works out pretty well to maximize our freedoms while minimizing threats. A functioning democracy provides us with a happy balance, if you will. The question arises, though, about what happens to those who cannot possible live within these structures or systems? It’s perfectly fine to say that no woman should have more than she is willing to work for, but what about the women who cannot work? This is where the real role of government comes to the forefront; to exercise legislative power over those both within the system but also to mandate the lives of those who fall outside the norm to insure “fairness.” For the disabled, this means the litany of rules and regulations that dictate access to programs like ODSP, ADP, and CCAC to ensure that only “those who need it” can access it and that people are only “given” what they need to survive.

Toyota Sienna with Braun side-deploying power ramp
Not my actual van, but one that looks suspiciously similar

This quickly becomes problematic when the rules and regulations of our society run in clear contrast to the needs and demands of a small, but still significant, portion of the population: like the Tsengs. While this particular instance is a bit atypical, as the Tseng’s should not have built the addition outside the regulations of the zoning bylaw and acquiring a permit could have stopped all of this from happening in the first place, it does beg the question that if the Tsengs could not adapt an appropriate house in this area, where are they supposed to go? Let me make this a bit more personal; if I need a double wide driveway to ensure room for my vehicle to deploy a side-mounted ramp and double-wide driveways are not legal within the City of London, what choice do I have but to leave the city? Further, is it not discriminatory for a town to essentially outlaw specific kinds of accommodation necessary for certain people to live, making it impossible for those individuals to stay in said city? For me, this is core to the oppression of the disabled in Canada — we live in a society that demands equality and, for some reason, “accessibility” and “accommodation” have become to signify “special privilege” rather than baseline requirements for living. Our obsession with “equal” has lead to people who genuinely believe that printing materials in alternate formats, like brail, is “nice to have” and not “necessary.”

Ultimately, as explained by Gus Sinclair in the article mentioned above, this is a “land use issue,” or more to the point, a “planning” issue and the belief is that “accessibility” and “accommodation” should not come into the discussion in the same way that “personal preference” has no place. Balancing access and preference is a challenge that is going to become fraught with complexity as our population ages and more and more people require a litany of accommodation to live a comfortable life. While there is no easy answer, at least legislatively, perhaps the solution is to begin changing the ways we look at accommodation. Specifically, should “accommodation” be something that is legislated by a Committee of Adjustment, whose job is to modify, bend, or uphold city bylaws and whose decisions can have precedence-setting power city-wide? Perhaps instead we need a committee that focuses specifically on short-term/individual-based exceptions to city bylaws based on accessibility need. In the case of the Tsengs, a committee of this variety could allow the family to maintain the addition until either the disabled family members have passed away or more suitable living space is procured, at which time the violating structure would need to be removed or modified, at the expense of the owner, as the accommodation is no longer required. These decisions could be site and time specific, meaning that other people in the neighbourhood could not break the bylaw unless a similar need for accommodation was required. A committee of this type could provide the flexibility needed to accommodate a variety of needs in very specific circumstances at very specific times without making wholesale change to city bylaw or causing substantial disruption to city planning strategies and direction.

Legislators and citizens alike may say we don’t have the power to make such decisions, or the time to handle cases on an individual basis, but I would beg to differ. Simply because it is how we have done it in the past doesn’t mean it is how we should do it in the future. Yes, we have learned some valuable lessons about things that work and don’t work historically, but we are truly the masters of our own destinies here. We can do whatever we want so long as a majority of us agree it’s the right thing to do and when it comes to allowing people to live their own lives safely, comfortably, and happily…how could that ever be wrong?

By Jeffrey Preston

Born with a rare neuromuscular myopathy, Jeff has spent his life dedicated to advocating for himself and others with disabilities. With a PhD in Media Studies from Western University, Jeff's research focuses on the representation of disability in popular and digital culture. Jeff is currently an Assistant Professor of Disability Studies at King's University College @ Western University in London, ON.

2 replies on “Legislating Access”

I find your article very interesting, in part because it ends with a “question mark”, Rather than a quick jump to conclusion… WhileI have no experience in this field whatsoever, but I wonder if the government has provided a way for citizens to ask what is and is not allowed in that context. I believe that in so many cases, problems arises because of the lack of communication, or more precisely applied to the government, the lack of information as to how to address those issues BEFORE starting a project. And, such an entity should provide solutions, rather than mere regulations.. Oh, I am aware that I went straight to “lalaland…”

I think you’re definitely right, but the problem we are facing right now in Ontario is that municipal staff find themselves caught between obligations from their own bylaws and current/incoming regulations under the Accessibility for Ontarians with Disabilities Act. Because these staffers don’t know what set of rules to follow (note: as I understand it, the AODA supercedes all rules/laws except decisions made by the Human Rights Commission), they often get stuck in what some call “analysis paralysis” and don’t make a decision or just say ‘no’ because it’s easier.

Regulations are important, of course, but I agree with you that compromise on compassionate grounds is likely more in line with the philosophical basis of Canadian society and, as such, we SHOULD provide lenience when accommodate the needs of our citizenry.