V. Principles for the Law as it Affects Persons with Disabilities

V. Principles for the Law as it Affects Persons with Disabilities2017-03-03T18:35:37+00:00

Based on the above, the LCO has identified six principles for the law as it affects persons with disabilities:

  1. Respecting the dignity and worth of persons with disabilities;
  2. Responding to diversity in human abilities and in other characteristics;
  3. Fostering autonomy and independence;
  4. Promoting social inclusion and participation;
  5. Facilitating the right to live in safety; and
  6. Recognizing that we all live in society.  

The six principles are closely linked. They cannot be understood or successfully implemented in isolation. To a certain degree, the underlying concepts overlap. For clarity, they are outlined here separately, but the Draft Framework applies them holistically, reflecting their connectedness.

As noted above, the LCO’s consultations assisted us in understanding what the principles might mean in practical terms. As well, the LCO funded six Commissioned Papers and carried out extensive internal research on the theme of transitions in the lives of persons with disabilities and the law as a means of identifying implications and possible interpretations of the principles.

 

A.    Respecting the Dignity and Worth of Persons with Disabilities

Proposed definition: This principle recognizes the inherent, equal and inalienable worth of every individual, including every person with a disability. All members of the human family are full persons, with the right to be valued, respected and considered and to have both one’s contributions and needs recognized.

 

1.     The Principle and the Experiences of Persons with Disabilities

There is a long history in Canada of negative attitudes towards persons with disabilities. Manifestations of ableism include involuntary institutionalization, forced birth control and sterilization, segregation away from the mainstream of the population and denial of basic rights.[33] While attitudes towards disability have evolved, a recent Environics Research Group Report on Canadian attitudes towards disability-related issues found that while most people like to think of themselves as being open to the participation of persons with disabilities in their day-to-day activities, many expressed significant discomfort with some aspects of relating to persons with disabilities, particularly those whose disabilities affect their communications, or where the disability involved “disfigurement” or behaviour that was not considered “normal”.[34]

There are specific stereotypes and stigmas associated with particular disabilities. For example, during the LCO’s consultations, many persons with mental health disabilities, particularly those who have been homeless, shared experiences which demonstrated that they had been subject to heavy judgment and negative assumptions when dealing with legal systems. These attitudes may contribute to the criminalization of persons with mental health disabilities, an issue of great concern to many participants.

As well, many participants talked about the suspicion and often contempt with which persons with disabilities are treated when seeking services and supports. Services which are designed to assist persons with disabilities in meeting their basic needs or improving their autonomy, independence and participation may in practice be implemented through an adversarial mindset, which assumes that those seeking services are attempting to game the system, or obtain benefits to which they are not entitled. This is particularly the case for persons with disabilities who are also poor.[35] 

Negative attitudes or stereotypes may affect the design of laws and policies and may be incorporated into their substance. For example, capacity and guardianship laws have been subjected to persistent criticism on the basis that they are founded in ableist notions about the abilities and worth of persons with intellectual disabilities.[36] As another example, until the relevant provisions were overturned through a court challenge, the Ontario Disability Support Program Act explicitly excluded from its supports and benefits those persons whose impairments and primary restrictions resulted from addictions to drugs or alcohol.[37] The Ontario Superior Court found that this exclusion was not in accordance with the purpose of the law; rather it was based on “assumed or unjustly attributed characteristics” regarding individuals with substance abuse disabilities, and that it resulted in the denial of the “essential human worth” of persons with these disabilities.[38]

A lack of respect for the worth and abilities of persons with disabilities may also affect how laws are implemented by justice system workers, service providers and others. For example, parents with disabilities have expressed concerns that negative assumptions may lead to increased scrutiny and intervention by the child welfare system.[39] Similarly, during the LCO’s spring 2010 public consultations, many persons with disabilities expressed concern about demeaning treatment or processes for obtaining benefits and supports under the Ontario Disability Supports Program. For example, one participant commented that,

To get funding, you have to strip yourself of any itty-bitty inkling of dignity that you have … you need to sort-of strip yourself of all the dignity that you have and open your private spaces up absolutely, completely, risking legal ramifications even – I wonder, I wonder if that information could be used when there are issues of aggression and violence and abuse and all that kind of stuff, if that kind of information you end up documenting to get the support you need to save yourself from yourself, to gain your dignity and independence, may actually be used against you at some point.[40]

 

2.     Interpreting the Principle

The principle of respect for the dignity and worth of persons with disabilities is a direct challenge to stereotypes and negative attitudes towards persons with disabilities. It emphasizes that dignity is something that belongs to us because we exist: it is not something that we earn or receive, and it cannot be rightfully ignored or diminished. It does not depend upon our health status or our abilities. Every person is worth caring about and entitled to respectful treatment.

This means that those who make law and policy, or who implement it, must be sure that laws and policies, in their substance or implementation, are not tainted by negative or dismissive attitudes towards persons with disabilities, for example through demeaning processes or insulting treatment. Because barriers for persons with disabilities tend to push them towards the margins, socially and economically, there is a disproportionate incidence of low-income among persons with disabilities,[41] and the particular set of negative attitudes towards low income individuals with disabilities deserve special scrutiny.

It also means that persons with disabilities should be understood as whole individuals – as employers as well as employees, parents and caregivers as well as recipients of care, volunteers and fully engaged citizens, and as sexual human beings, among other roles – rather than being reduced to the sum of their impairments, and as passive objects of charity. This requires us to see persons with disabilities in their full social context, and as individuals with complex identities and evolving life courses.

 

B.    Responding to Diversity in Human Abilities and Other Characteristics

Proposed definition: This principle requires recognition of and responsiveness to the reality that all people exist along a continuum of abilities in many areas, that abilities will vary along the life-course, and that each person with a disability is unique in needs, circumstances and identities, as well as to the multiple and intersecting identities of persons with disabilities that may act to increase or diminish discrimination and disadvantage. 

 

1.     The Principle and the Experiences of Persons with Disabilities

All humans vary in their abilities. “Disability” may be thought of as part of this normal variance. Social and environmental barriers may, at some points along this continuum of abilities, create disabling experiences for some individuals.[42]  Certain impairments may not constitute a disability in the sense that they affect a person’s daily life. The most obvious example is eyesight: many people who have poor eyesight are able to wear glasses that sufficiently compensate to enable them to function in most aspects of their life as if their eyesight were not impaired. Without corrective lenses, however, their eyesight might, in fact, constitute a disability. As well, some conditions commonly considered as impairments may have positive aspects that are often ignored: for example, some recent studies associate the learning disability of dyslexia, which results in challenges in learning to read and write, with stronger than average skills in other areas, such as spatial perception.[43] That is, the differences associated with disability may be positive as well as negative. Persons with disabilities are not “the other”, but are part of the range of human experience.

Persons with disabilities are commonly viewed as a homogenous group, mainly defined by their impairments. This obscures the enormous diversity of the disability community. The experience of disability will differ considerably depending on the nature of the impairment: while the experience of exclusion and marginalization may be common, needs and experiences may be unique.[44] The impact of a disability may also differ depending on whether an individual is living in an urban area where access to supports and services may be greater, or in a remote or rural area;[45] whether the individual has a supportive family and community surrounding him or her; his or her socio-economic status; and other factors. That is, individual lives, needs and experiences will differ widely even among persons with the same impairments, although the law may have difficulty in effectively recognizing and addressing this diversity.

As is noted above, one of the circumstances of persons with disabilities that should be taken into account is the disproportionate experience of low income. Whether as a result of their environments, their impairments or in most cases a combination of the two, individuals with disabilities tend to have lower socio-economic status than their peers without disabilities. On average, persons with disabilities live with lower incomes,[46] have lower levels of education,[47] and have a greater exposure to violence and victimization than the average.[48] This is particularly true for certain groups of persons with disabilities, such as women and Aboriginal individuals.[49] The level and type of disadvantage also may differ depending on the type of disability. For example, persons with developmental disabilities report the lowest labour force participation rate of any group of persons with disabilities, with those with hearing or mobility disabilities faring relatively better in this respect.[50] Disadvantages may accumulate throughout life. For example, a person who experiences barriers in education due to a disability will have lower levels of literacy and of educational attainment throughout life, resulting in greater difficulty in entering and remaining in the workforce, and therefore in maintaining stable income levels and adequate housing. 

As well, there has been considerable scholarship about how the experiences of disability may differ based on gender, racialization, sexual orientation or other aspects of a person’s identity. Women with disabilities, for example, have special concerns regarding reproduction and parenting. Aboriginal persons with disabilities may have difficulty finding accessible support services that are sensitive to their culture and history. All of these forms of identity will help to shape the life courses of persons with disabilities.

Unfortunately, there is a tendency to carve off different pieces of our identities. So, you know, my experience has been that there’s a lot disability organizations that don’t speak to issues around social location or multiple identities. So, they don’t look at issues for racialized communities, they don’t look at issues for queer communities within the disability community. And then those organizations that really do have a level of expertise around the complexities within the LGBT community, within racialized communities, don’t often think about people with disabilities coming into their services.[51]

 

2.     Interpreting the Principle

One of the implications of an acknowledgement of the near universality of impairment is the need to widen the range of what is considered “normal” in the context of human abilities, and to design social, political and physical structures more flexibly and inclusively.[52] To put this principle into action, universal or inclusive design, with a concomitant commitment to accessibility, is a key strategy to ensure the maximum inclusion of all people with their infinitely varying abilities.[53] The CRPD imposes as a general obligation the promotion of universal design in standards and guidelines.[54]

Inclusive design has been considered as part of the duty to accommodate.[55] Appropriate accommodations are required to ensure full recognition of the spectrum of variance in human abilities. As the Ontario Human Rights Commission (OHRC) has emphasized, “[a]ccommodation with dignity is part of a broader principle, namely, that our society should be structured and designed for inclusiveness”.[56]

In Unison 2000 highlights the intersectional aspect of diversity:

The framework [developed In Unison] also acknowledges the importance of developing flexible policy solutions in order to meet individual needs. Each person with a disability is unique and their specific needs, aspirations and challenges are influenced by their type of disability, stage of life, family, community and cultural context, and other characteristics. Aboriginal persons with disabilities, for example, view disability issues within frameworks that reflect their own cultural principles.[57]

Inclusive design and accommodation must take into account the multiple aspects of identity for persons with disabilities.

The principle of diversity in human abilities and other characteristics also reinforces the recognition that persons with disabilities are individuals first and foremost. For many individuals and in many circumstances, their disability is not the most important aspect of their identities. This recognition helps us to move beyond stereotypes and to combat ableism and paternalism.

 

C.     Fostering Autonomy and Independence

Proposed definition: This principle requires the creation of conditions to ensure that persons with disabilities are able to make choices that affect their lives and to do as much for themselves as possible or as they desire, with appropriate and adequate supports as required. 

 

1.     The Principle and the Experiences of Persons with Disabilities

Responses to disability have often been marked by paternalism, the tendency to remove decision-making from persons with disabilities “for their own good”.[58] This has been particularly marked for persons with intellectual or psycho-social disabilities.

[M]any people with more significant intellectual, cognitive and psychosocial disabilities face substantial or total restrictions in making their own decisions.  They often encounter others who presume they are unable to guide their own lives, are people who need to be ‘fixed’, or protected, and who limit or completely restrict the scope of their decision making.  Many people are physically isolated or socially and economically excluded and therefore without meaningful choices or the opportunity to develop a vision and direction for their own lives, and to make their own decisions. Service provision in the disability and older adult sectors is often based on charity and protection models, and an assumption that because people need supports and care, others should make decisions on their behalf.  Often service providers also require that they are provided decision making authority on behalf of those they are supporting so they can more efficiently manage the range of individual decisions related to care, medications, activities, etc.[59] 

The current legal regimes regarding decision-making for those who are determined to lack legal capacity in a particular area of life provide one of the most striking illustrations of paternalism.[60] In Ontario, the Substitute Decisions Act[61] and the Health Care Consent Act[62] create mechanisms for determining legal capacity and for identifying substitute decision-makers where legal capacity is found to be lacking. These approaches to diminished cognitive or intellectual abilities have been the subject of significant criticism from the intellectual disabilities community, and an alternative “supported decision-making” approach has been proposed and recognized in the CRPD.[63] Similarly, there is ongoing controversy regarding involuntary treatment of persons with psychiatric disabilities mental health law.[64]

Related to the opportunity to choose for oneself is the opportunity to do for oneself – to support oneself financially, to live independently, and to have, to the degree possible, the life options available to persons without disabilities. In Via Rail, the Supreme Court of Canada considered the principle of independence central to the finding that Via Rail’s failure to accommodate users of personal wheelchairs infringed the rights of persons with mobility disabilities to exercise their independence.[65] In some cases, independence is difficult to achieve because of physical, social or institutional barriers. For example, a discrimination on the part of landlords and a dearth of accessible housing may make it difficult for persons with disabilities to live independently,[66] and limited accessible transportation services may reduce opportunities for employment or education.[67] In some cases, persons with disabilities may require supports in order to achieve independence. For example, supporting persons with disabilities with self-advocacy tools can reduce the dependence of persons with disabilities on family members or service providers, and enhance skills and confidence.[68]

 

2.     Interpreting the Principle

The principle of fostering autonomy and independence includes the both the right to choose for oneself, and to do for oneself, and is a response to the various forms of paternalism that may affect persons with disabilities. 

“Autonomy” has been defined by the World Health Organization (WHO) as “[t]he perceived ability to control, cope with and make personal decisions about how one lives on a daily basis, according to one’s own rules and preferences.”[69] In the context of s.7, the Supreme Court of Canada has articulated the principle of autonomy as including “decisions of fundamental personal importance” particularly with respect to bodily integrity.[70] Disability Rights Promotion International (DRPI) defines autonomy as 

the right of an individual to make his or her own choices. Autonomy, or self-determination, means that the person is placed at the centre of all decisions affecting him or her and may choose forms of supported decision-making.[71] 

In some circumstances, the autonomy of persons with disabilities may be perceived to be in tension with other principles. For example, in some cases limiting the choices of or enabling others to make choices on behalf of persons with disabilities has been seen as justified in order to achieve other ends, including the safety and security of persons with disabilities or of others in society. Also, some laws are put in place in recognition of the particular risks or vulnerabilities that persons with disabilities might experience because they lack appropriate supports. Although some limitation may be justified consistent with other principles, it is crucial that the focus remain on respecting the autonomy of persons with disabilities as much as possible and that limitations not be motivated by paternalism.

It is helpful to remember that autonomy is realized in the context of our relationships. This is not only true for persons with disabilities, but for all of us. Jennifer Nedelsky argues that it is relatedness which enables people to gain autonomy; the relationships between “parents, teachers, friends, loved ones” are what “provide the support and guidance necessary for the development and experience of autonomy”.[72] This approach focuses on “structuring relationships so that they foster autonomy.”[73] Relational autonomy recognizes that none of us makes decisions on our own but we do so in consultation with others, and that the provision of support to persons with disabilities in the context of decision-making does not undermine autonomy.

The WHO defines independence as “[t]he ability to perform an activity with no or little help from others, including having control over any assistance required rather than the physical capacity to do everything oneself.”[74] In Unison 2000 stresses that the promotion of independence or “citizenship” and other LCO principles is linked to the goal of improving disability-related supports: 

Disability supports are tools for inclusion. They are critical if people with disabilities are going to lead fulfilling lives and participate fully in their communities. Without them, many people with disabilities are not able to fulfill their social and economic potential.”[75] 

The principle of independence therefore requires that persons with disabilities are provided with appropriate levels of supports to do things for themselves to the greatest degree possible.

The principle of autonomy and independence applies to all areas of life for persons with disabilities. It includes within its scope fundamentally personal decisions and provides strong support for enhanced disability-related and income supports for persons with disabilities. Further, both autonomy and independence inform the duty to accommodate as requiring accommodations that maximize the ability of persons with disabilities to choose and do for themselves.

 

D.    Promoting Social Inclusion and Participation

Proposed definition: This principle refers to designing society in a way that promotes the ability of all persons with disabilities to be actively involved with their community by removing physical, social, attitudinal and systemic barriers to exercising the incidents of such citizenship and by facilitating their involvement.

 

1.     The Principle and the Experiences of Persons with Disabilities

It has been suggested that, given the persistent marginalization and exclusion of persons with disabilities from the public sphere, the disability rights movement might be conceived of as a “visibility project”:

To sum up, the relative or absolute invisibility of persons with disabilities has meant that the legal structures created to advance private freedom (protection against the abuse of power) and public freedom (participation in the mainstream) have either not been applied or have been applied with less rigour in the case of persons with disabilities. 

This has produced a category of person who, while being dependent on the public sphere for survival, lacks access to or influence over public policy. Such persons are denied full admission to public power and full control over their individual destiny. They remain outside the mainstream of society. This lack of presence – or invisibility – serves to reinforce stereotypical assumption about persons with disabilities. It encourages a lack of respect for people with disabilities as rights holders on an equal footing with others.[76]

That is, it is important for persons with disabilities, in all of their individuality and diversity, to be recognized as individuals whose experiences are important and whose perspectives are valued, and for them to be able to actively participate in the development of the law. Without that recognition and participation, laws that appear neutral or that are intended to benefit persons with disabilities may actually have a negative effect on their equality.  

Well, the laws are written by able-bodied people. You know, they don’t sort of vet them. I guess they have some sort of experts, but you know, I worked for the Ontario government for a long time and I saw the policy. I tried to point out where the barriers were, actually in the Cabinet Submissions process in the first place, it’s like the tail wagging the dog. We’re too small of a group to really take that seriously. You know, I think that it’s just peppered throughout all the legislation, it’s really coming from that perspective.[77]

Participation is important at the individual level as well as at the broader societal one. For example, Mona Paré examined the ability of students with disabilities and their parents to have input in decisions that affect their ability to participate equally in the educational context, and found that, due to a range of barriers including lack of information, complex systems and power imbalances, such participation is minimal, despite laws and policies intended to facilitate it.[78]

Participation is closely affiliated with the concept of inclusion. Persons with disabilities have often experienced physical or social exclusion or marginalization, whether arising from attitudinal, physical, social or institutional barriers. The long history of institutionalization of persons with disabilities is a particularly clear example of exclusion, but people with disabilities continue to be pushed to the margins in a variety of social areas, including employment, education and community life. The principle of inclusion aims to redress this exclusion, and make persons with disabilities full members of their communities and of society at large.

 

2.     Interpreting the Principle

The principle of promoting social inclusion and participation has a variety of aspects. It includes ensuring the ability of persons with disabilities to participate in the community, and to be heard as equal citizens on issues that affects them. In Unison 2000, for example, equates this principle with the concept of citizenship, which involves “the ability of a person to be actively involved with their community. Full citizenship depends on equality, inclusion, rights and responsibilities, and empowerment and participation.”[79]

As well, as Frédéric Mégret describes, participation as it is used in the CRPD constitutes “a broader demand, made not only to the state but also to society, to allow persons with disabilities to fully become members of society and the various communities of which they are a part.”[80] The principle of inclusion and participation therefore promotes respect for the integration of persons with disabilities in society as desired, and attempts to recognize, prevent and remove various barriers to that integration. Such barriers include stereotypes, false assumptions, stigmas and ableist attitudes about the abilities of persons with disabilities. This principle may also manifest in a way that demands particular respect for the cultures that have evolved within a disability community. Education and various methods of awareness-raising are often identified as means to apply this principle effectively.

Barriers to participation may affect different subgroups differently. For example, persons with intellectual, cognitive or psychosocial disabilities may be restricted from participation in decisions affecting their daily living if found to lack legal capacity. Persons with mobility disabilities may find it difficult to access social and recreational programs or to vote if buildings are not physically accessible. Participation, therefore, can require different considerations for different people depending on their particular experience of disability.

It is important to note that this principle may mean different things for different subgroups within the disability community. Those who are culturally Deaf, for example, believe that inclusion means that respect and space is made for the continuity of that particular linguistic and cultural community.[81] Other subgroups within the disability community, such as the intellectual and learning disabilities communities, may consider the principle of inclusion to encompass the integration of persons with disabilities into all aspects of mainstream society.[82] These positions are not necessarily mutually exclusive; however, the means of achieving inclusion might differ for various subgroups of persons with disabilities based on their particular vision of inclusion.

 

E.     Facilitating the Right to Live in Safety

Proposed definition: This principle refers to the right of persons with disabilities to live without fear of abuse or exploitation and where appropriate to receive support in making decisions that could have an impact on safety.

 

1.     The Principle and the Experiences of Persons with Disabilities

Persons with disabilities are at greater risk of violence and abuse, whether by strangers or in the context of a trust relationship. Those who are most at risk are persons with disabilities who are living in an institutional setting, have severe disabilities, or have mental disorders.[83] Low income among persons with disabilities exacerbates the risk of violent victimization.[84]

People with mental health issues are forced to live in poverty. In social work, there’s something called Maslow’s hierarchy of needs. Maslow was a gentleman who determined that there’s a hierarchy of needs that we need in order to be happy and healthy and mentally well, and it’s a pyramid and if you don’t have the things at the bottom of the pyramid, all of the things at the top aren’t going to do any good. You won’t be well. You need the things at the bottom. And at the very bottom of the pyramid is safety and security. If you’re living in poverty, you cannot be safe and secure. Poverty makes us crazy, it doesn’t keep us crazy, it makes us crazy in the first place. Unless we deal with poverty, people dealing with mental health issues, the numbers are going to go up, and soon it won’t be one in five, it will be one in two.[85]

Despite the increased risk of victimization, the 2006 Statistics Canada Victims Services Survey reported that only 24 per cent of victim services agencies in Canada were able to provide services to persons with disabilities.[86] DAWN Canada reported to the LCO that,

It is important to note that women with disabilities (physical, mental, sensory, chronic illness) experience a much higher rate of abuse of all types, than their nondisabled counterparts and more abuse than men who have disabilities. This is important to keep in mind, as it is often very difficult for women with disabilities to even leave the abusive situation in which they find themselves, let alone take legal action against their abusers. Often, women’s shelters and transition houses are not accessible to women with disabilities. Therefore, it would appear that it would be even more difficult for women with disabilities to access any legal help, especially if they could not find a safe haven first.[87]

As well, public institutions may not be sufficiently equipped to respect and protect the safety of the persons with disabilities they serve. For example, persons with disabilities are less satisfied with the police response to their complaints than others, and have a less favourable view of the criminal justice system.[88]

I was at one time, about 10 years ago, put on a Form 1, which means that you can be danger to yourself or others. I wasn’t a danger to anybody else, so I was obviously a danger to myself. When the police came to arrest me, he ordered me to kneel down in front and put my hands behind my back, then he proceeded to cuff me, after he cuffed me, he went over to my eyes and sprayed me with pepper spray for about 3 seconds. With pepper spray, it’s like riding a bull, every second seems like an eternity. They want to play judge and jury and executioner in the field. I don’t know what stimulates them to abuse and take advantage of vulnerable disabled people, I don’t really understand where it comes from.[89]

The LCO reviewed the results of the Coroner’s Inquests into the deaths of persons with disabilities between 1989 and 2010. The Office of the Chief Coroner identified 121 of such deaths. The review identified the magnified risks to safety faced by some of the most vulnerable individuals with disabilities, including inappropriate or excessive use of restraints, lack of appropriate supervision or safety procedures in institutional settings, and inadequate discharge planning for those individuals with psychiatric disabilities transitioning from institutional settings to the community.[90]

Persons with disabilities may not feel empowered to address institutional abuse or exploitation. There is often a significant power imbalance between the individual with a disability and the person or organization administering the law or program. For example, ARCH points out that persons with intellectual disabilities may rely on developmental services and supports for many activities of daily living, such as eating, dressing, bathing, toileting, managing finances, or navigating social assistance bureaucracies, and states that:

This dependence leaves people with disabilities vulnerable; they must work hard to maintain good relationships with support workers, family members and others on whom they rely in order to ensure that they continue to receive support and their basic needs are met. Making a complaint about a support worker or raising a concern about services may threaten or sever those relationships, and this can have disastrous impacts for the person with a disability.[91]

Not surprisingly, persons with disabilities revealed lower than average perceptions of their personal safety and security.[92]

 

2.     Interpreting the Principle

This principle has its roots in the provisions of the CRPD that affirm the rights to liberty and security of the person; to freedom from torture or cruel, inhuman or degrading treatment; to freedom from exploitation, violence and abuse; as well as protections related to adequate standards of living and social protection and the attainment of the highest achievable standard of health.[93] The CRPD more specifically identifies one particular concern about the abuse and exploitation of women and girls with disabilities.[94] The right under section 7 of the Charter to security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice is also applicable. The principle affirming a right to live in safety requires consideration of the socio-economic barriers faced by persons with disabilities, as well as the higher than average rates of abuse and exploitation experienced by persons with disabilities,[95] and the challenges faced by persons with disabilities who experience abuse and exploitation in seeking services and supports.[96]

The history of the way in which the lives of persons with disabilities have often been curtailed as a result of both well-meaning and less well-meaning interventions by others make this principle contentious. There is a risk that a principle of entitlement to live in safety may be interpreted in a manner that would encourage paternalistic interventions in the lives of persons with disabilities. Nevertheless, it is crucial that law and policy be designed and private actions be conducted in a way that the security of persons with disabilities not be threatened. Protection against abuse of this principle can be found in the application of the other principles, such as the principle of fostering autonomy and independence. Where the principle of facilitating the right to live in safety exists in tension with other principles, Part VI of this Paper suggests a means of approach.

 

F.     Recognizing That We All Live in Society

Proposed definition: This principle acknowledges that persons with disabilities are members of society, with entitlements and responsibilities, and that other members of society also have entitlements and responsibilities. 

 

1.     The Principle and the Experiences of Persons with Disabilities

All of us have multiple identities, ties, and communities; for those with disabilities, their experiences as persons with disabilities are only one part of that. To extend this point, persons with disabilities are members of the broader community, with which they have a wide range of ties, as well as reciprocal rights and obligations. The well-being of persons with disabilities – as citizens, as parents and family members, as workers and volunteers, as taxpayers and recipients of services – is closely connected to the wellbeing of the broader society. The reverse is, of course, true as well. Persons with disabilities, and the law as it affects them, cannot be considered as separate from this larger context. 

 

2.     Interpreting the Principle

The CRPD includes in its Preamble the realization that “the individual, having duties to other individuals and to the community to which he or she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the International Bill of Human Rights”.[97] In Unison defined citizenship as including “rights and responsibilities. It implies participation in and contribution to the systems and the ‘core’ services in which all Canadians can participate and to which most Canadians have access”.[98] 

A principle that recognizes the various communities to which persons with disabilities belong may strengthen the recognition of difference and diversity and add further dimensions to the right to participation and inclusion. It may also provide a helpful means of articulating and analyzing tensions that may arise between the rights of persons with disabilities and those of other members of the community. 

This principle also recognizes that many demands are made on governments and private actors and it is not always possible to satisfy them. Many of these demands also relate to goals of inclusion in society, for example. This principle is not intended to subordinate the claims of persons with disabilities to the claims of others; rather, it is to recognize that the claims and entitlements of persons with disabilities sometimes affect others in society, just as the claims and entitlements of others affect persons with disabilities. In assessing these various claims, it will be important to refer to the other principles to ensure that the needs of persons with disabilities are not treated as lesser in importance than other claims and to see when they are of greater importance.

 

Previous Page Next Page
First Page Last Page
Table of Contents