Disability, Assistive Animals and the Law

By Brittni Tee

In July, I participated in public symposium hosted by the Yukon Human Rights Commission relating to disability, assistive animals and the law. The event provided a forum for participants to learn the basics of human rights law relating to this topic, and to partake in a facilitated discussion about how to improve inclusion for people using assistive animals in the Yukon.  Participants included assistive animal users, as well as various stakeholders representing business, government and transit in Whitehorse.

The Commission handles a high-volume of disability-related work, so prior to attending the conference I had already spent a significant amount of time learning about different elements of disability law. After a working for a number of weeks, I was beginning to feel as though I had a decent understanding of the leading cases and important “tests” that had been laid out by the courts relating to discrimination on the basis of disability. Yet, despite my academic understanding of the law in this area, hearing people speak about their own experiences with discrimination really brought these issues into focus in a different way.  As someone who has always been passionate about inclusive policy-making, the experience inspired me to think more critically about the existing laws on this topic and to consider the practical and legal aspects of improving accessibility across Canada.

Canoeing the Yukon River

Most people have some degree of familiarity with guide dogs, which have been specifically trained to assist blind and visually impaired persons navigate obstacles. However, there are actually a wide variety of tasks performed by service animals which may be less familiar to the public. Individuals with epilepsy may use a service animal to pre-emptively warn them about an oncoming seizure, or to respond in the event that a seizure occurs. Animals can be trained to calm children with autism in high anxiety situations, or to respond to nightmares and flashbacks experienced by people with PTSD.  Some service animals can even be trained to smell when a diabetic person’s blood sugar is too low, prompting their owners to take insulin. In addition to the wide variety of tasks performed by service animals, “emotional support animals” have also been increasing in prevalence.  Unlike service animals, these animals are generally not trained to complete specific assistive tasks, but rather provide comfort and support to people with disabilities.

Prior to working at the Commission, I had assumed that there was a clear legal regime governing the certification and regulation of assistive animals. Consequently, I was rather surprised to learn that there is actually no unified legal definition of a “service animal” in Canada. Instead, there are a variety of different provincial and federal regulatory regimes which address this topic in a rather patchwork fashion.  In the Yukon specifically, there is currently no legislation which explicitly regulates the certification or use of assistive animals. Unsurprisingly, the lack of clarity surrounding these issues has been a source of confusion and frustration for many people.

Under provincial human rights legislation across Canada, it is prohibited to discriminate on the basis of disability in employment, housing or the provision of services to the public. In order to prevent or reduce such discrimination, employers, landlords and service providers have a “duty to accommodate” any special needs arising from a disability (or from any other characteristics protected under human rights legislation). The duty to accommodate is not absolute, but rather extends to the point where additional accommodation would cause “undue hardship”.  Jurisprudence has held that while “undue hardship” should be interpreted to include more than mere inconvenience, it is permissible to consider issues such as cost, health and safety requirements, and employee morale.

In the context of disability, this generally means that employers, landlords and service providers are obliged to accommodate the use of assistive animals on their premise, unless they can prove that doing so would cause them undue hardship. Nonetheless, many people remain unsure about the extent of their obligations relating to assistive animals under provincial human rights legislation, particularly in situations where different regulations may appear to contradict each other. For example, in many jurisdictions, businesses which prepare food are not permitted to allow animals on the premise for health and safety reasons. Yet, under provincial human rights legislation, people with disabilities cannot be turned away from a business for using an assistive animal.  Since human rights legislation generally supersedes other legislation, conflicting regulations should normally give way to the duty to accommodate. Nonetheless, it is perhaps unsurprising that confusion on this topic seems to persist, particularly for small business owners who don’t necessarily have access to sophisticated legal resources.

Unfortunately, these difficulties have been compounded by the perception of an increase in “fake” assistive animals. Since service animal vests and fraudulent “certifications” are readily available online, it is relatively simple to give the appearance of legitimacy to any animal. Given the lack of regulation on this topic, this practice has been able to continue with relatively few repercussions. Sadly, the proliferation of fake service animals has serious negative consequences for persons who genuinely require the use of such animals to assist with their disability. Since fraudulent assistive animals are usually not properly trained, they often exhibit behavioural issues which can cause real problems for businesses and other service providers. This has led to an increase in scrutiny (and sometimes hostility) for those using assistive animals for legitimate purposes.

One potential solution to this problem is to require the certification and identification of all service animals. This approach is currently in use in British Columbia and Albert, but the rollout of these regulations has been met with mixed reviews. Many advocates have noted that certification actually has the potential to create roadblocks for people who depend on the use of service animals. Since there are already incredibly long wait-lists to receive an animal from recognized training organizations, the certification process could further restrict and delay the ability to access an assistive animal. This would have the undesirable effect of decreasing the autonomy of disabled people to choose and self-train the best animal for their needs.

Hiking in Tombstone Territorial Park

At the symposium hosted by the Commission, one of the speakers presented the story of his experience trying to find a guide dog in the Yukon to assist him with his visual impairment. At the time, there were no guide dog trainers available in the Yukon, and the waitlists to receive a dog from out of province were incredibly high. Faced with these options, the speaker decided to train his own service dog, using resources that he had found at the library. This approach was highly successful and allowed the speaker to bypass the prohibitive costs and wait times normally required to access a guide dog. After listening to this story, it became clear to me that excessively regulating this area without first improving access to properly trained animals has the potential to cause more harm than good.

Attending this conference has certainly given me a new appreciation for the numerous ways in which assistive animals often change the lives of the people they have been trained to help. Unfortunately, it was clear from listening to the various presenters that long wait lists, high costs, unclear regulations and a lack of public understanding continue to pose significant barriers to people attempting to gain access to the valuable services provided by assistive animals. In order to make meaningful accessibility a reality, we need to come up with better solutions to these problems to ensure that people with disabilities have the resources they need to fully participate in our society with dignity and autonomy.

Trauma and the Practice of Human Rights Law

By Brittni Tee

In the early weeks of my internship at the Yukon Human Rights Commission, I attended a seminar focused on strategies to prevent vicarious trauma, burnout, and compassion fatigue in the workplace. With the exception of myself and my colleagues, the majority of people in attendance were social workers, addictions counsellors, and paramedics. As I listened to other attendees share stories about difficult situations that they had experienced at work, I remember feeling distinctly out of place. Prior to this workshop, the intersection between the practice of law and trauma had not been particularly apparent to me.  Yet, as my internship progressed, I quickly became grateful for the crash-course in trauma that this seminar had provided.

Most of my work with the Commission centers around responding to inquiries from members of the public.  Although the Commission will assist anyone who has a question about the Yukon Human Rights Act, the majority of inquiries I receive are from individuals who believe that their human rights have been violated. Unsurprisingly, conversations about these experiences are often emotionally fraught, both for myself and for the people that I am trying to help. After challenging days at the office, I sometimes find myself feeling drained, thinking about stories I heard at work while trying to relax at yoga or enjoy a drink with friends. Although I have only spent a few months at the Commission, it’s easy to imagine how the cumulative, long-term effect of this type of work could have negative mental health consequences.

The legal profession is somewhat notorious for embracing a competitive, “survival of the fittest” ethos which discourages acknowledging any sign of weakness. Unfortunately (and perhaps unsurprisingly), this culture has led to alarmingly high rates of addiction, depression and other mental health issues within the profession. Although these issues are beginning to be addressed from the perspective of improving work/life balance, the effects of trauma are less commonly discussed. In practice areas such as human rights law where trauma is regularly encountered in the workplace, this has negative repercussions for both practitioners and the people they are trying to help.

In simple terms, trauma is the psychological and emotional response to an experience that is deeply distressing or disturbing. It is often explained as our body’s response to an event perceived by our nervous system as significant threat, either to ourselves or others (often loved ones). In the field of human rights law, practitioners are also likely to encounter systemic or intergenerational trauma in communities that have been historically oppressed.  In many cases, the negative consequences of these experiences can persist across multiple generations.

While most people recognize that a traumatic event can create long-lasting emotional effects, many people underestimate the severe neurological impacts that trauma can have upon the brain. Research has shown that trauma can create long-term damage to the neurological pathways used for decision-making, resulting in overstimulated “fight, flight or freeze” responses. In addition to changing how a person interacts socially, this can also affect the ability to process thoughts and make good judgments. Taken together, the effects of trauma can significantly impact the way that individuals engage with the justice system and other elements of society.

In recent years, the concept of “trauma-informed practice” has become increasingly mainstream. Fundamentally, this approach focuses on acquiring a basic understanding of the psychological, neurological, biological, social and spiritual impact that trauma and violence can have on individuals seeking support. In particular, trauma-informed practice is centered on creating compassionate relationships built on respect, trust and safety. For practitioners, this means putting the choices of the people you are trying to help at the forefront of your practice, rather than trying to control or micromanage decisions. This is particularly important in human rights law, since individuals experiencing systemic discrimination can often develop a mistrust of authority figures and institutions. In these cases, providing hierarchical services which amplify existing power-dynamics may risk re-traumatizing those seeking assistance. In light of these considerations, trauma-informed practice emphasizes reducing power imbalances and approaching relationships from a position of equality.

In addition to understanding the impact that trauma can have upon individuals seeking assistance, it is also necessary to consider how repeated exposure to trauma can affect legal practitioners. Vicarious trauma, burnout and compassion fatigue are all incredibly common in the legal profession, particularly in practice areas such as human rights law. It is important for people working in these roles to keep an eye-out for signs which may indicate that their mental health may be suffering as a result of their work. Common recognizable signals of vicarious trauma and burnout include feelings such as sadness, anxiety, isolation, irritability, disturbed sleep, fatigue and difficulty concentrating. Many practitioners also experience something called “compassion fatigue” which results in a lack of empathy and loss of faith in humanity.

Increasing trauma-awareness is an important first-step to preventing and treating vicarious trauma and burnout in the legal profession. Workplaces should also strive to build healthy work environments, which include scheduled breaks and opportunities for employees to “step-away” from work when they feel overwhelmed. On a personal level, there are a number of strategies which individuals can use to reduce the negative mental health repercussions of repeated exposure to trauma. These include exercising regularly, eating healthy, maintaining personal support systems, and generally maintaining a balanced lifestyle.

Yet, while these techniques may be helpful, systemic and institutional changes are also necessary to truly reduce the prevalence of these issues. As trauma scholar Vikki Reynolds has noted, “individualizing” solutions to vicarious trauma obscures the context of social injustice in which this work occurs.[1]  The cause of the harm experienced by people working in helping professions is not clients, but the endless struggle and frustration of working within the confines of an unjust systems.  Although self-care is an important element of preventing burnout and vicarious trauma, ultimately the solution to these problems requires a collective commitment to justice and social change.

My internship at the Human Rights Commission has been incredibly rewarding, both personally and professionally. While this summer has reinforced my longstanding aspiration to work in this field, I have also realized that human rights work presents unique challenges. For those interested in building a career working in the public interest, understanding trauma and its effects is crucial to building a successful and sustainable practice. Moving forward, the legal profession must work harder to educate students and practitioners about the intersections between trauma and the practice of law. Ultimately, this will improve both the mental wellness of practitioners and the quality of service that they are able to provide to the public.

[1]https://vikkireynoldsdotca.files.wordpress.com/2017/12/reynolds2011resistingburnoutwithjustice-doingdulwich.pdf

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