[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: