[1] Information about this project can be found on the LCO’s website at www.lco-cdo.org/en/content/older-adults. The LCO has released an Interim Report with Framework for that Project, and the Final Report and Framework will be released in mid-2012.

[2] All of the LCO’s public documents for this project are available online: www.lco-cdo.org/en/content/persons-disabilities.

[3] This discussion of the merits and limitations of a principles-based approach is indebted to the thoughtful submissions to the LCO’s 2009 Preliminary Consultation from the Ontario Bar Association and ARCH Disability Law Centre.

[4] An overview and classification of the types of laws affecting persons with disabilities may be found in the LCO’s Preliminary Consultation Paper: Approaches to Defining Disability (June 2009), available online at http://www.lco-cdo.org/en/disabilities-threshold-paper.

[5] International policy and legal instruments aimed at advancing the rights of persons with disabilities include: the Declaration of the Rights of Mentally Retarded Persons, GA Res. 2856 (XXVI), UN GAOR, 26th Sess., Supp. No. 29, UN Doc. A/8429 (1971) 93; the Declaration on the Rights of Disabled Persons, GA Res. 3447 (XXX), UN GAOR, 30th Sess., Supp. No. 34, UN Doc. A/10034 (1975) 88; the World Programme of Action concerning Disabled Persons, GA Res. 37/52, UN GAOR, 37th Sess., Supp. No. 51, UN Doc. A/37/51 (1982); International Labour Organization Convention 159 concerning Vocational Rehabilitation and Employment (Disabled Persons), 69th Sess. (1983); the Additional Protocol to the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights “Protocol of San Salvador”, OAS Doc. A-52, 18th Sess. (1988); the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, GA Res. 46/119, UN GAOR, 46th Sess., Supp. No. 49, UN Doc. A/46/49 (1991) 189; the Standard Rules on the Equalization of Opportunities for Persons with Disabilities, GA Res. 48/96,  48th Sess. (1993); the Declaration of Managua (December 1993); the Vienna Declaration and Programme of Action, adopted by the UN World Conference on Human Rights, UN Doc. A/Conf 157/23 (1993); “Situation of Persons with Disabilities in the American Hemisphere”, GA Res. 1249 (XXIII-O/93), 9th Sess.; “Panama Commitment to Persons with Disabilities in the American Hemisphere”, GA Res. 1369 (XXVI-O/96), 6th Sess.; International Year of Disabled Persons, UN Doc. A/RES/36/77 (1981); and the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons With Disabilities, GA Res. 1608, OAS GAOR, 29th Sess. (1999).

[6] United Nations, Convention on the Rights of Persons with Disabilities, 13 December 2006, G.A. Res. 61/106 [CRPD].

[7] Canada has not signed the Optional Protocol.

[8] CRPD, Art. 1 note 6.

A.      [9] Secretariat of the Convention on the Rights of Persons with Disabilities, United Nations Enable, “Backgrounder: Disability Treaty Closes a Gap in Protecting Human Rights” (United Nations Department of Public Information, May 2008), online: http://www.un.org/disabilities/default.asp?id=476 [Secretariat].
[10] Secretariat, note above, ch.2, online: http://www.un.org/disabilities/default.asp?id=225.

1.       [11] Canadian Human Rights Commission, “Background Paper on the Convention on the Rights of Persons with Disabilities Article 33”. Online: http://www.chrc-ccdp.ca/unconvention_conventionnu/page1-eng.aspx.     
[12] Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12. It is important to note that, although the concept of dignity was seen as a central principle in the equality analysis under section 15 in R. v. Kapp, [2008] S.C.J. No. 42, the Court has identified problems with the extreme emphasis on dignity in section 15 as making it more difficult for claimants to prove their claims (para.22). As a result, the principle of dignity will remain part of the analysis in section 15, but may not take on such a predominant role.

[13] Law v. Canada (Minister of Employment and Immigration) note above at para. 51-53.

[14] Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; see also B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.

[15] New Brunswick (Minister of Health and Community Services) v. G.(J.), [1999] 3 SCR 46.

[16] Ontario Human Rights Code, R.S.O. 1990, c. H-19, s. 1 [Code].

[17] Code, note above, s. 14.

[18] Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Toronto: November, 2000) [Policy] at section 4.1. Online: http://www.ohrc.on.ca/en/resources/Policies/PolicyDisAccom2.

[19] Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 78 [Granovsky] at paras. 56-58. It is important to note that human dignity underlies many Charter guarantees, and that it does not constitute a particular “test” which section 15 applicants must meet: R. v. Kapp, [2008] S.C.J. No. 42.

[20] Battleford and District Cooperative Ltd. v. Gibbs, [1996] 3 S.C.R. 566 [Battleford] dealt with the history of stigma and marginalization affecting persons with mental health disabilities: see paras. 30-31; see also R. v. Swain, [1991] 1 S.C.R. 933 [Swain] at 994 on this same issue. 

[21] Québec (Commission des droits de la personne et des droits de la jeunesse v. Montréal (City), [2000] 1 S.C.R. 665, 2000 SCC 27 [Québec] at paras. 77-83.

[22] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 [Eaton] at para. 67.

[23] Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 [Eldridge].

[24] Council of Canadians with Disabilities v. VIA Rail Canada Inc. [2007] 1 S.C.R. 650, 2007 SCC 15 [Via Rail] at para. 162.

[25] British Columbia (Superintendent of Motor Vehicles) v. B.C. (Council of Human Rights), [1999] 3 S.C.R. 868 [BC Council of Human Rights] at paras. 38 – 40, following B.C. (Public Service Employee Relations Commission) v. BCGSEU [1999] 3 S.C.R. 3 [BCGSEU].

[26] The Government of Canada also releases regular reports on “Advancing the Inclusion of People with Disabilities”. Online: http://www.rhdcc-hrsdc.gc.ca/eng/disability_issues/reports/fdr/2009/page00.shtml. As well, some provinces, such as Saskatchewan and Manitoba have moved towards comprehensive policy frameworks for disability issues.

[27] All provinces participated with the exception of Quebec.

[28] Social Union, In Unison: A Canadian Approach to Disability Issues (Human Resources Development Canada, 1998) [In Unison]. Online:http://www.socialunion.gc.ca/pwd/unison/unison_e.html.

[29] In Unison, note 28 at 3.

[30] In Unison, note 28 at 4.

[31] In Unison 2000: Persons with Disabilities in Canada (Human Resources Development Canada, 2000) [In Unison 2000]. Online: www.socialunion.gc.ca/pwd/union/unison_e.html.

[32] Withler v. Canada (Attorney General), 2011 SCC 12. at para. 39.

[33] For a brief history of the treatment of persons with intellectual disabilities in Ontario, see K. Joffe, ARCH Disability Law Centre, “Enforcing the Rights of Persons with Disabilities in Ontario’s Development Services System” (Law Commission of Ontario: June 30, 2010) [Joffe] at ss. 12 – 20. Online: www.lco-cdo.org.

[34] Environics Research Group, “Canadian Attitudes Towards Disability Issues, A Qualitative Study: Final Report” (Government of Canada Office of Disability Issues: 2004) at s 9, 32-34.

[35] This point is made in a the research paper prepared by the Income Security Advocacy Centre, “Denial by Design: the Ontario Disability Support Program” (Toronto, 2003). Online: http://www.odspaction.ca/sites/odspaction.ca/files/denialbydesign.pdf.

[36] M. Bach and L. Kerzner, “A New Paradigm for Autonomy and the Right to Legal Capacity” (Law Commission of Ontario: November 2010) [Bach and Kerzner] at 32. Online: www.lco-cdo.org/en/persons-disabilities.

[37] Ontario Disability Support Programs Act, 1997, S.O. 1997, c. 25, Sched. B, s. 5(2).

[38] In Tranchemontagne v. Ontario (Director, Disability Support Program), [2006] 1 S.C.R. 513, 2006 SCC 14, the Supreme Court of Canada ruled that the Social Benefits Tribunal had the power to declare a provision of the ODSPA inapplicable on the basis that the provision was discriminatory, and remitted to the Social Benefits Tribunal for a ruling on the applicability of s.5(2) of the ODSPA. In Ontario (Director, Disability Support Program) v. Tranchemontagne, 2009 CanLii 18295 (Ont. S.C.J.), the Court upheld the finding of the Social Benefits Tribunal that the exclusion of persons disabled solely by addiction from the Ontario Disability Support Program was inconsistent with the Ontario Human Rights Code.

[39] This issue arose during the LCO’s public consultations. One individual interviewee, a mother with a disability, told the LCO that,

“There was this fear of the health care profession calling CAS due to misperceptions and a lack of understanding of the independent living model… I planned the birth of my daughter around this fear.  Initially, I had a fear of being in hospital with the baby and them calling CAS. .. CAS is a real threat – the fears of parents with disabilities are real. Two months before I gave birth, at the same hospital a newborn baby was taken away right at birth from a blind mother. The perception of what a parent is creates that fear in our society.”

[40] LCO Focus Group, May 11, 2010, Toronto, (Organizations).

[41] Some of the dynamics and statistics around this issue are briefly highlighted in  Law Commission of Ontario “Consultation Paper: The Law as it Affects Persons with Disabilities” (September 2011) at 9,Online at www.lco-cdo.org/en/content/persons-disabilities.

[42] Joffe, note 33 at 39.

[43] A. Mitchell, “The Gift of Dyslexia”, The Globe and Mail (26 July 2003).

[44] Government of Canada, “Advancing the Inclusion of People with Disabilities” (Ottawa: Human Resources Development Canada, December 2002) at 5.

[45] During the LCO’s consultations, much was said about the difficulties of accessing services, supports and accommodations outside of major urban centres. For example, it was the LCO’s experience that arranging for real-time captioning and American Sign Language interpretation in northern Ontario was extremely challenging, even with considerable lead time.

[46] Persons with disabilities are disproportionately likely to live in poverty. For example, within the age cohort 25 to 34, a Canadian without a disability can expect to earn an income on average of $33,078, while a Canadian with a disability within the same age cohort can expect an income of a third less, $23,087. And while Canadians without disabilities can expect to increase their incomes until the age of

55, the incomes of persons with disabilities actually decrease on average after the age of 35. Canadians living without a disability in the age cohort 35 to 44, report an average income of $36,553, while Canadians living with a disability in the same age cohort have an average income of $22,447, almost a $15,000 discrepancy in reported income: Statistics Canada, Participation and Activity Limitation Survey, [PALS] 2006, Tables Part V (Ottawa: Statistics Canada, 2006)  at 8-10.

[47] According to 2001 data collected by Statistics Canada, 36.5% of Ontarians with disabilities between the ages of 15 and 64 had less than a high school education, while 11.5% of that group had completed university. By comparison, only 23.7% of Ontarians without disabilities between the ages of 15 and 64 had less than a high school education, and 22.2% had completed university – a striking differential with lifelong implications for employment, income and well-being: Statistics Canada, “Education, Employment and Income of Individuals With and Without Disabilities”, PALS  2001 (Ottawa: Statistics Canada, 2003) at 19 and 35. These are overall figures; breaking them down on the basis of certain factors (such as Aboriginal status) would show lower average levels for some groups than for others.

[48] Information from Statistics Canada’s General Social Survey confirms that persons with disabilities are at greater risk for violence and victimization. Persons with activity limitations are victims of both physical assault and sexual assault about twice as often as persons without limitations. Those who are most at risk are persons with disabilities who are living in an institutional setting, have severe disabilities, or have mental disorders: S. Perreault, “Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems” (Canadian Centre for Justice Statistics: Ottawa, May 2009) [Perrault] at 8.

[49] See PALS 2006: Tables Part V, note 45 at 11.

[50] See PALS 2006: Labour Force Participation of People with Disabilities in Canada (Ottawa: Statistics Canada, 2006 at 9-10. 

[51] LCO Focus Group, May 11, 2010, Toronto (Organizations).

[52] R.. Scotch and K. Schriner, “Disability as Human Variation: Implications for Policy” (1997) 549 Annals of the American Academy of Political and Social Science 148 at 154 [Scotch and Schriner]; D. Surtees, “What Can Elder Law Learn from Disability Law?” in I. Doron, ed., Theories on Law and Ageing: The Jurisprudence of Elder Law (Heidelberg, Germany: Springer, 2009); Zola, “Toward the Necessary Universalizing of a Disability Policy” (1989) 67 The Milbank Quarterly 401 at 410 [“Toward the Universalizing of Disability Policy”] 93 at 99 citing M. Stein, “Disability Human Rights” (2007) 95 Cal. L. Rev. 75 at 75 and 86.

[53] Scotch and Schriner, above note 52 at 158; J. Bickenbach, S. Chatterji, E.M. Bradley, T.B. Usten, “Models of Disablement, Universalism and the International Classification of Impairments, Disabilities and Handicaps” (1999) 48 Social Science & Medicine 1173 at 1183.

[54] CRPD, note 6, Art. 1(f). Article 2 states that “’Universal design’ means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design”; however,  universal design “shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.”

[55] See the  Policy, note 18, at section 4.1.

[56] Policy, note 18.

[57] In Unison 2000, note 31.

[58] Paternalism has been defined as follows: “When [rules, policies and actions] are justified solely on the grounds that the person affected would be better off, or would be less harmed as a result of the rule, policy etc., and the person in question would prefer not to be treated this way, we have an instance of paternalism”. G> Dworkin, “Paternalism” in Edward Zalta, ed., The Stanford Encyclopedia of Philosophy (Summer 2009) online: http://plato.stanford.edu/archives/sum2009/entries/paternalism.

[59] Bach and Kerzner, note 36, at 6. Also see Joffe, note 33, at 28.

[60] The Board of Governors of the LCO has approved a project to re-examine Ontario law regarding capacity and decision-making. Work on this project will commence in 2012, following the completion of the LCO’s projects on the law as it affects persons with disabilities and the law as it affects older adults, and will employ the frameworks developed through these projects.

[61] Substitute Decisions Act, 1992, .S.O. 1992, c.30

[62] Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A.

[63] CRPD, note 6, at Art. 12.

[64] Meeting of LCO staff with representatives of the Coalition Against Psychiatric Assault, January 9, 2011.

[65] Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] S.C.J. No. 15 at para. 162.

[66] See Ontario Human Rights Commission, “Right at Home: Report on the Consultation on Human Rights and Rental Housing in Ontario (Toronto: Ontario Human Rights Commission, 2010) at pages 18- 21 and 54-55. Online: http://www.ohrc.on.ca/en/resources/discussion_consultation/housingconsultationreport.

[67] O. Reg. 191/11 under the Accessibility for Ontarians with Disabilities Act, 2005,S.O. 2005, c. 11 deals extensively with removal of barriers to accessible public transportation, an issue which has been of concern for some time: see for example, Ontario Human Rights Commission, Consultation Report: Human Rights and Public Transit in Ontario (Toronto: 2002). Online: http://www.ohrc.on.ca/en/resources/discussion_consultation/ConsultPubTransit2.

[68] For a fuller discussion of self-advocacy and the principle of independence, see Joffe, note 33 at 58 and following.

[69] World Health Organisation, A glossary of terms for community health care and services for older persons (Kobe, Japan: WHO, 2004) at 10 (Technical Report Vol. 5 WHO Centre for Health Development Ageing and Health. WHO/WKC/Tech.Ser./04.2). Online: http://whqlibdoc.who.int/wkc/2004/WHO_WKC_Tech.Ser._04.2.pdf.

[70] R. v. Morgentaler, [1988] 1 S.C.R. 30 [Morgentaler].

[71] Paula Pinto, ed., “National Law and Policy Monitoring Template: Extended

Version” (Toronto: Disability Rights Promotion International, 2008) at 4.

[72] Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts, and Possibilities” (1989) 1:7 Yale J. Int’l L. 7 at 12.

[73] Jennifer Nedelsky, “Reconceiving Rights as Relationship” (1993) 1 Rev. Const. Stud. 1, at 8.

[74] World Health Organization, “Active Ageing: A Policy Framework”, A Contribution of the World Health Organization to the Second United Nations World Assembly on Ageing (April 2002) at 12-13, at 34. Online: http://www.who.int/ageing/publications/active/en/index.html.

[75] In Unison 2000, note 31.

[76] G. Quinn and T. Degener, “The Moral Authority for Change: Human Rights Values and the Worldwide Process of Disability Reform” in G. Quinn and T. Degener, eds., Human Rights and Disability: The Current Use and Future Potential of United National Human Rights Instruments in the Context of Disability (New York: United Nations Publication, 2002) 9 at 17.

[77] LCO Focus Group, Toronto, May 12, 2010 (Organizations)

[78] M. Paré, “La Participation des personnes handicapées dans les decisions qui les concernent: L’exemple de l’éducation”, (Law Commission of Ontario: July 2010). Online: www.lco-cdo.org.

[79] In Unison 2000, note31 at 10.

[80] F. Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” (2008) 30 Human Rights Quarterly 494 at 509.

[81] G. Malkowski, Audism Workshop, Canadian Hearing Society and Toronto Association of the Deaf (3 June 2010).

[82] Eaton, note 22, the Council of Canadians with Disabilities (CCD), the Canadian Association for Community Living (CACL), People First, and the Confédération des Organismes de Personnes Handicapées du Québec (COPHAN) advocated for a presumption towards integration in the educational setting for students with disabilities: see Sarah Armstrong, “Disability Advocacy in the Charter Era” (2003) 2 J.L. & Equality 33 at para. 53.

[83] Perreault, note 48, at 8.

[84] Perreault, note 48, at 8-9.

[85] LCO Focus Group, June 11, 2010, Toronto (Individuals with Mental Health Disabilities).

[86] Perreault, note 48, at 11.

[87] DAWN – RAFH Canada, “Response to the Law as it Affects Older Adults Consultation Paper” (Law Commission of Ontario: July 7, 2008) [DAWN] at 1.

[88] Perreault, note 48, at 10 and 13.

[89] LCO Focus Group, Thunder Bay, June 16, 2010 ( Aboriginal Organizations)

[90] C. Evans and D. Bassili, “Review of Coroners Inquests Involving Persons with Disabilities: 1989 – 2010” (Law Commission of Ontario: April 2011) [unpublished].

[91] Joffe, note 33, at 31. The author notes that stakeholders have described situations where persons with disabilities who made complaints were reprimanded or harmed by their support worker, or were the subject of threats, for instance to cut off ODSP benefits.

[92] Perreault, note 48, at 13.

[93] CRPD, note 6, articles 14, 15, 16, 28 and 25.

[94] CRPD, note 6, Preamble: “Recognizing that women and girls with disabilities are often at greater risk, both within and outside the home of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation”.

[95] Perreault, note 48, at 8.

[96] Perreault, note 48 at 11. Also see  DAWN, note 85, at 1.

[97] CRPD, note 6, Preamble.

[98] Unison, note 28.

[99] The Honourable Justice Frank Iacobucci, “’Reconciling Rights’ The Supreme Court of Canada’s Approach to Competing Charter Rights” (2003) S.C.L.R. (2d) 137 at 158; see also Nedelsky, ‘Rights as Relationship” at 10; [Iacobucci] and see also BJ Wray, “Balancing Conflicting Rights: Towards an Analytical Framework” online: OHRC <http://www.ohrc.on.ca/en/resources/discussion_consultation

/balancingrights/pdf> at 17.

[100] See Iacobucci, note above.,at 158, the Honourable Justice Frank Iacobucci argues that the first and potentially most important aspect of reconciling tensions between principles is sensitivity to context; see also Nedelsky, ‘Rights as Relationship” , note 71 at 10; and see also Wray, note above.

[101] For a variety of perspectives on these issues, see the compendium, Association for Canadian Studies, 8 Canadian Diversity: Balancing Competing Human Rights 3 (Summer 2010).

[102] Iacobucci, note 99 at 162,167.

[103] P. Hughes, Legal Frameworks: The Reconciliation Model, Balancing Competing Human Rights (Ottawa: Ontario Human Rights Commission, 2010). 

[104] It has been noted that “Human rights discourse in the absence of a clear focus and understanding of differential access to power and resources loses sight of the principle of equality of citizenship. In other words, the policy framework must have integrated within it a component of access to justice.” (L. Foster and L. Jacobs, “Shared Citizenship as the Context for Competing Human Rights Claims” (Summer 2010), 8 Canadian Diversity: Balancing Competing Rights Claims 3 at 13).

[105] M. Green, “What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement” 23 Human Rights Quarterly 1062 at 1062-1097.


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