A. Challenges and Contexts in Identifying the Principles
As described in our forthcoming Background Paper, Developing a Framework for the Law as it Affects Persons with Disabilities, the LCO has undertaken an extensive and broadly based process to identify principles for the law as it affects persons with disabilities that:
meaningfully capture the aspirations and diverse experiences of persons with disabilities;
can be usefully applied in the multiple contexts where laws, policies and practices operate; and
can feasibly be operationalized in an evaluative framework.
This paper and the accompanying Draft Framework continue the process of identifying and refining the principles that will form the foundation of the Final Framework.
As noted above, the LCO’s project builds on an extensive body of existing theoretical and policy work. Much of the LCO’s preliminary research involved identifying, analyzing and attempting to synthesize this work, as well as considering how it might apply in Ontario’s legal context. The breadth and complexity of this context posed a particular challenge for identifying and defining principles in a way that could be meaningfully applied.
The identification of the principles has not been a linear process. The various research projects and the multiple stages of consultation have informed each other. As new issues are identified, the LCO continues to re-examine the primary sources and earlier analyses.
Because the LCO’s two “Framework” projects (this project on the law as it affects persons with disabilities and the sister project on the law and older adults) have proceeded concurrently, the two projects informed each other. There are significant commonalities in the principles identified in the two projects; however, there are crucial differences in the way those principles are defined, reflecting differences in contexts of the two groups and the barriers that they face in achieving their aspirations.
B. Sources for the Principles
The LCO looked to a broad range of sources to identify principles for the law and persons with disabilities. The description below outlines the key types of sources and the most foundational documents and processes. However, for reasons of length, not all sources considered can be identified or analyzed here.
1. Analyzing the Current Legal Framework
One cannot develop principles for an area of the law without first developing an understanding of that area – the issues that it does and does not address, the presuppositions on which it is based, and the approaches used to tackle issues. As a preliminary step therefore, the LCO undertook a review of all Ontario laws that directly reference persons with disabilities, as well as research on laws of general application that may affect persons with disabilities differently or disproportionately. This research formed one of the underpinnings of the LCO’s Preliminary Consultation Paper.
This review identified a number of overarching issues that principles should either take into account or directly address. The following are examples:
The lives of persons with disabilities are, for better and for worse, heavily regulated, so that the law is both broad and complex.
Due to a tendency to develop laws that are focused on addressing specific issues, the law is fragmented and may be limited in its ability to address persons with disabilities in a holistic fashion; this issue is highlighted by the research that the LCO has undertaken on transition points for persons with disabilities and the law.
There is a general tendency in designing laws to emphasize a functional model of disability.
The law generally relies on persons with disabilities to navigate complex systems and advocate for themselves.
Many laws that are crucial to the well-being of persons with disabilities lack monitoring and accountability mechanisms to ensure that they are operating effectively and as intended.
2. Public Consultations
As described in the forthcoming Background Paper, Developing a Framework for the Law as it Affects Persons with Disabilities, the LCO has carried out public consultations at a number of stages in this project. These public consultations, particularly the extensive community consultations undertaken in the spring and summer of 2010, were crucial to the development of the principles and of the Draft Framework in general. In particular, they assisted the LCO in the following ways:
Understanding the lived experience of persons with disabilities with various laws, including identifying common challenges and positive practices within the law.
Understanding how various groups of persons with disabilities may experience the law differently.
Identifying the aspirations of persons with disabilities for their lives, and how the law may act as a barrier or a bridge to achieving these aspirations. And,
Identifying how ableism may operate in both the substance and the implementation of the law.
In short, the consultations informed all aspects of this project.
3. International Documents
The international legal community has created numerous legal instruments that advance the rights of persons with disabilities. The most recent and encompassing is the United Nations Convention on the Rights of the Persons with Disabilities (CRPD).
Most significantly, the CRPD codified the commitment of the international community to recognize the rights of persons with disabilities. The CRPD was ratified by Canada on March 11, 2010. The purpose of the CRPD is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.” It reflects social and human rights models of disability and therefore highlights the need for society to adapt to the specific circumstances and realities of persons with disabilities in order to ensure respect and inclusion. The CRPD does not provide for “new” rights for persons with disabilities, since they are entitled to all the rights accruing to persons under other UN conventions, but recognizes that “without a legally binding treaty that spelled out their rights, persons with disabilities faced being legally ‘invisible’ in their societies and even in the international arena”.
The CRPD details the rights that all persons with disabilities enjoy and outlines the obligations of States Parties to protect those rights. These specific rights include, among others, the right to life, liberty and security of the person; equal recognition before the law and legal capacity; freedom from exploitation, violence and abuse; respect for mental and physical integrity; to live in the community; to privacy; to expression of opinion; to education, health and work; to an adequate standard of living; and to participate in political, public and cultural life. The State’s obligations are to “respect, protect and fulfill” the rights under the CRPD, concepts which are further described in Part VI of this Paper.
The CRPD also sets out a number of general principles:
Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
Full and effective participation and inclusion in society;
Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
Equality of opportunity;
Equality between men and women;
Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.
Article 33 of the CRPD provides for “national implementation and monitoring”. Furthermore, States Parties are to develop a framework (or strengthen existing ones) “to promote, protect and monitor implementation” of the CRPD that takes into account existing human rights regimes. Monitoring the CRPD is to involve civil society organizations, especially persons with disabilities.
4. The Charter of Rights and Freedoms and Human Rights Law
Any discussion of Canadian law and persons with disabilities must begin with a consideration of the rights enshrined in the Charter of Rights and Freedoms and their interpretation in the caselaw over the past 30 years. The Charter applies to provincial, federal, territorial and municipal governments and to organizations with a nexus with government, bodies that are performing government functions, such as hospitals. It applies to legislation, regulations, municipal by-laws, government action and the executive branch. It does not apply to the private sector; however, the private sector may be influenced by the Charter when its actions are subject to legislation that is challenged under the Charter. The Charter rights most important to the identification of principles for the law as it affects persons with disabilities are those set out in sections 7 and 15.
Section 15(1) of the Charter provides for equality before and under the law, and for equal protection of the law without discrimination on the basis of a number of enumerated grounds, including mental or physical disability. Section 15(2) of the Charter shields laws, programs and activities that aim to ameliorate the conditions of disadvantaged groups or individuals, including those experiencing disadvantage due to their mental or physical disability. In interpreting section 15 and the right to equality, the Supreme Court has given central place to the principle of dignity. The principle of dignity means that the affected individual or group feels self-respect and self-worth, and is concerned with physical and psychological integrity and empowerment.
Section 7 of the Charter guarantees the life, liberty and security of the person, and the right not to be deprived of these except in accordance with the principles of fundamental justice. The right to liberty has been interpreted as including the right to make fundamental personal decisions, as well as freedom from physical constraint and interference with physical freedom. Liberty includes the right to an irreducible sph