Based on the above, the LCO has identified six principles for the law as it affects persons with disabilities:
Respecting the dignity and worth of persons with disabilities;
Responding to diversity in human abilities and in other characteristics;
Fostering autonomy and independence;
Promoting social inclusion and participation;
Facilitating the right to live in safety; and
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. 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”.
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.
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. 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. 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.
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. 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.
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, 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. 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. 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. 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; 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, have lower levels of education, and have a greater exposure to violence and victimization than the average. This is particularly true for certain groups of persons with disabilities, such as women and Aboriginal individuals. 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. 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 a