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 sphere of personal autonomy regarding matters that “can properly be characterized as fundamentally or inherently personal such that, by their very nature, they might implicate basic choices going to the core of what it means to enjoy individual dignity and independence.” Within that sphere, individual choices must be free from state interference. Security of the person has been interpreted by the Supreme Court of Canada as including an individual’s “psychological integrity” where the interference is sufficiently serious.
Human rights statutes (in Ontario, the Human Rights Code) also provide a foundation for the identification of principles for the law as it affects persons with disabilities. The purpose of the Ontario Human Rights Code, as expressed in its Preamble, is to recognize the inherent dignity and worth of every person and to provide for equal rights and opportunities without discrimination. The provisions of the Code are aimed at creating a climate of understanding and mutual respect for the dignity and worth of each person, so that each person feels a part of the community and feels able to contribute to the community.
The Code prohibits discrimination on the basis of disability, as well as of sex, sexual orientation, age, family and marital status, race, ethnicity, place of origin, and several other grounds. Where it is necessary in order to ensure equal treatment without discrimination on the basis of disability, individuals have the right to accommodation up to the point of undue hardship for needs associated with their disability. These rights extend to the social areas of employment, housing, goods and services, professional and occupational associations, and contracts. Like the Charter, the Code permits special programs to alleviate hardship or economic disadvantage or that are designed to assist individuals or groups to attempt to achieve equal opportunity.
The OHRC has broad powers to advance the purposes of the Code as expressed in the Preamble. These powers include the ability to develop statements of policy, interpreting the provisions of the Code. The OHRC has developed the Policy and Guidelines on Disability and Duty to Accommodate (2001).That document outlines three principles for consideration in providing equal treatment without discrimination for persons with disabilities:
Respect for dignity: this includes individual self-respect and self-worth, as well as privacy, confidentiality, comfort, autonomy, individuality and self-esteem.
Inclusion and participation: this includes ensuring that persons with disabilities are able to access their environment and face the same duties and requirements as everyone else, with dignity and without impediment, and involves inclusive design and the removal of barriers.
Individualization: each person with a disability must be considered, assessed and accommodated individually, as each person is unique.
The disability-related case law arising under both the Charter and human rights law is rich and complex. Fundamental principles emerging from that case law include:
An equality analysis that focuses on recognition of the inherent dignity and worth of persons with disabilities.
The recognition that laws and policies may reflect stigmas and negative assumptions related to particular disabilities.
The recognition that barriers in attitudes and the environment are a key component in the experience of disability, so that the focus of a disability rights analysis must be on dignity, respect and the right to equality rather than solely on biomedical impairments.
The necessity of broadening the “mainstream” structures of society to include and respect the differences associated with disability.
An emphasis on the right of persons with disabilities to receive equal benefit of services, by design and from the outset, even where special measures are required to ensure this is the case. Equal access includes consideration of the independence, comfort, dignity, safety and security of persons with disabilities.
The right of persons with disabilities to be assessed and accommodated based on their own personal characteristics, rather than assumptions related to their disability.
5. Domestic Policy Documents
Canada and various provinces have, over the years, adopted a number of important policy frameworks surrounding persons with disabilities. In 1998, the federal, territorial and provincial ministers responsible for social services developed In Unison: A Canadian Approach to Disability Issues which out a blueprint for promoting the integration of persons with disabilities in Canada. This report was also aimed at creating a coordinated approach to delivering services and benefits to persons with disabilities and to promoting inclusion and participation. The report articulates a vision of full citizenship for persons with disabilities in Canada:
Persons with disabilities participate as full citizens in all aspects of Canadian society. The full participation of persons with disabilities requires the commitment of all segments of society. The realization of this vision will allow persons with disabilities to maximize their independence and enhance their well-being through access to required supports and the elimination of barriers that prevent their full participation.
In Unison aimed to achieve this vision of citizenship for persons with disabilities through the implementation of three building blocks: disability supports, employment and income. It endorsed principles of universal design “by focusing on policies that promote access to generic programs and services for all Canadians, including persons with disabilities.” It emphasizes the values of equality, independence and inclusion.
In 2000, the federal, provincial and territorial ministers responsible for social services issued an updated version of In Unison, In Unison 2000. This Report compares the situation for persons with disabilities with that of persons without disabilities and provides examples of effective practices. It is more responsive to the distinct experiences and approaches of First Nations than the 1998 Report was. The Report indicates that the members of the disability community who participated in developing In Unison 2000 believed that “’an access and inclusion lens’ should be applied to all activities of governments, from human resources to the broad range of programs delivered”.
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