I. Background

In the fall of 2007, the Board of Governors of the Law Commission of Ontario (LCO) approved a project on the law as it affects persons with disabilities and those with whom they interact.

The intent of this Project is to develop a coherent approach to this area of the law. That is, like the LCO’s similar project on the law as it affects older adults, this project will not focus on reform of any one specific issue; rather, its purpose is to develop a principled analytical framework for this area of the law that can be used as a tool for shaping legislative initiatives that affect persons with disabilities or reforming current law. Current laws, policies and programs may be used as examples in developing and illustrating the framework.

Older adults are more likely than their younger counterparts to live with disabilities. Several of the most complex issues in the area of elder law are related to disability law, such as institutional living, substituted decision-making and caregiver supports. Therefore, there are some areas of significant overlap between the two projects. The LCO expects that the two projects will benefit from being developed in tandem.

This Project on the law as it affects persons with disabilities is very broad in scope. Given the wide range of Ontario laws and policies that impact on persons with disabilities in areas as diverse as employment, income support, transportation, the built environment, health law, caregiving supports, education and mental health, it is a significant challenge to simply identify the current framework, the principles and assumptions that underlie it, and the way in which it has been operationalized, let alone develop a principled basis for reforming and developing this area of law. Therefore, this will be a multi-year, multi-stage project.

Persons with disabilities make up a very significant proportion of the Canadian population – 14.3 per cent (and 15.5 per cent of Ontarians), according to the results of the 2006 Statistics Canada Participation and Activity Limitation Survey (PALS).[1] The number and proportion of Canadians with disabilities has been steadily increasing, partly, but not entirely, as a result of the aging of the Canadian population.[2] Persons with disabilities therefore make up a substantial proportion of the population. Given the increased occurrence of disability associated with aging, some refer to persons without impairments as the “not yet disabled”, and point out that, when disability is considered in this light, almost everyone will, at some point in their lives, either experience disability or have a family member with a disability.

Over the past 40 years, there has been significant movement towards acknowledging the experiences of persons with disabilities and recognizing their rights. There has been concerted organization and advocacy by persons with disabilities, and traditional understandings of the nature of disability have been challenged and transformed. Disability has been added as a protected ground to the Ontario Human Rights Code,[3] the Ontario Building Code now includes minimum accessibility standards,[4] there has been considerable advancement in the deinstitutionalization of persons with disabilities, and primary and secondary public schools provide special education programs. The Canadian Charter of Rights and Freedoms and human rights statutes have been the basis of significant legal victories.[5] Recent initiatives include the passage and gradual implementation of the Accessibility for Ontarians with Disabilities Act,[6] Ontario’s new Developmental Disabilities Act,[7] the new Mental Health Commission of Canada and on the international front, the United Nations International Convention on the Rights of Persons with Disabilities,[8] which Canada is expected to ratify.

Nevertheless, persons with disabilities continue to experience significant and wide-ranging disadvantage when compared to their non-disabled peers. Persons with disabilities experience barriers in obtaining education that may result in compromised educational attainment.[9] They are less likely to be employed, and when employed, are likely to earn less and to be employed in precarious work.[10] (There may therefore be some overlap between this project and the LCO’s concurrent project on vulnerable employees and precarious work.) Overall, they are significantly more likely to live with a low-income.[11] Persons with disabilities are also significantly more likely to be the victims of violent crime and domestic violence.[12] This suggests a need to critically re-examine current legal approaches to disability issues, and to develop a new framework of principles for this area of the law. The LCO hopes that this Project will ultimately provide a valuable aid to law and public policy in undertaking this task.

B. Considerations and Starting Points

As a starting point for this Project, the LCO has identified a number of analytical considerations, or starting points, which will shape the LCO’s approach to the law as it affects persons with disabilities. The LCO will:

· employ an intersectional analytical framework, taking into account the impact on the experiences of persons with disabilities of gender, sexual orientation, age, racialization, Aboriginal identity, citizenship status, marital and family status, socio-economic status and other relevant factors;

· view the law as it affects persons with disabilities in light of the broader social and economic conditions within which people with disabilities are situated, and within which the law is made, interpreted, accessed and enforced;

· undertake to understand the law as it manifests itself in the lived experiences of persons with disabilities and consider how persons with disabilities experience their encounters with the law; as part of this approach, the LCO will employ a life-course perspective when considering the impact of the law on persons with disabilities;

· adopt as a starting point of analysis an equality rights/human rights framework, grounded in the principles underlying the Canadian Charter of Rights and Freedoms and the Ontario Human Rights Code; and

will take into account the broader international human rights context, including key international human rights instruments and policy documents.

C. This Paper

This Paper marks the first step in this Project. Its purpose is to assist in defining the scope of the Project. In order to understand the law as it affects persons with disabilities, it is essential to first understand what is meant by the term “person with a disability”. This is by no means as simple a question as it may appear. The answer has varied over time in the popular understanding, as well as among scholars, advocates and policy makers. The legal frameworks currently applied in Ontario with respect to disability adopt a multiplicity of approaches and definitions. The issue continues to be the subject of lively debate, and understandings are continually evolving.

The answer is important, however. It determines whose needs are recognized and addressed. Legislative definitions of disability frequently serve to determine entitlement to government benefits and programs, and access to rights. As well, the answer we give to this question reflects how we think about the issues associated with disability, and will shape the types of programs and policy responses to disability that are considered appropriate.

This Paper outlines some of the key conceptual approaches to disability, and how they have evolved over time. It examines definitions of disability found in key international documents, influential Canadian policy frameworks and demographic research. It provides a brief overview of Ontario legislation relating to disability and the types of approaches to defining disability used in these statutes and regulations. This is a broad area, and this Paper does not attempt to be comprehensive: the aim is to identify key ideas, trends and issues. Lastly, it raises questions for consideration in adopting a definition of disability.

The LCO welcomes comments on the issues raised by this Paper and will consider them in defining the scope of this Project and developing an approach to disability. Details on providing input are provided in the final section of this Paper.