[1] This paper was prepared by Michael Bach, Executive Vice-President of the Canadian Association for Community Living and Lana Kerzner, Barrister and Solicitor, who is a disability law lawyer in Ontario. The paper has been prepared for the Law Commission of Ontario, and we express our gratitude for their generous financial contribution for undertaking the research and preparation of this paper.  We are also grateful for the financial contribution for student and background research made through the Community-University Research Alliance Project, titled ‘Disabling Poverty/Enabling Citizenship: Examining Exclusions and Identifying Opportunities for the Full Participation of Canadians with Disabilities’ and funded by the Social Sciences and Humanities Research Council.  We express our sincerest appreciation to Justin Gould, law student, for his excellent research assistance.  In writing this paper, we drew on two earlier papers we wrote:  Lana Kerzner, “Embracing Supported Decision-Making: Foundations for a New Beginning” (March, 2009), written for the Canadian Association for Community Living and Michael Bach “The Right to Legal Capacity under the UN Convention on the Rights of Persons with Disabilities: Key Concepts and Directions for Law Reform” in Agustina Palacios and Francisco Bariffi, eds., Legal Capacity, Disability and Human Rights: a review in the light of the UN Convention on the Rights of Persons with Disabilities [published in Spanish] (Mexico:  Liberia de Porrua, 2010).  We also express our sincere appreciation to Jeremiah Bach who provided helpful suggestions on earlier drafts of this paper.

[2] These terms are defined in Part One, Section I.

[3] For example see Paul Longmore, “Medical Decision Making and People with Disabilities: A Clash of Cultures” (March 1995) 23:1 The Journal of Law, Medicine and Ethics at 82-87.

[4] See, for example, Deborah Stienstra & Aileen Wight-Felske, eds., Making Equality: History of Advocacy and

Persons with Disabilities in Canada (Toronto: Captus Press, 2003); Alison Pedlar & Peggy Hutchinson, “Restructuring Human Services in Canada” (2000) 15:4 Disability & Society 637-651; A. Turnbull & R. Turnbull, “Self-Determination: Is a Rose by Any Other Name Still a Rose?” (2006) 31:1 Research and Practice for Persons with Severe Disabilities at 1-6.

[5] Alan Borovoy, “Guardianship and Civil Liberties” (1982) 3 Health L.  Can. at 51- 57,  cited in Orville Endicott & Kenneth Pike, “Developing Legal Approaches That Reinforce Rather Than Disregard The Capacity Of Persons With Mental Disabilities To Make Choices”  [(1995)unpublished,  archived at   Ontario Association for Community Living].

[6] See for example, Michael Bach, Jane Anweiler & Cameron Crawford, Coming Home — Staying Home, Legal Research: Supported Decision Making and the Restriction of Guardianship (Toronto: The Roeher Institute, 1994).

[7] Timothy Stainton, Autonomy and Social Policy (Brookfield, Vt.: Ashegate, 1994); Roeher Institute, Harm’s Way: The Many Faces of Violence and Abuse against Persons with Disabilities (Toronto:  Roeher Institute, 1995); Steven Edwards, “The Moral Status of Intellectually Disabled Individuals” (1997) 22:1 Journal of Medicine and Philosophy at 29-42.

[8] The Mental Disability Advocacy Centre, “Guardianship and Human Rights in Bulgaria” (August 2007) at 5-6 online: The Mental Disability Advocacy Centre <www.mdac.info/reports> (last accessed 20 October 2010).  Other country reports on guardianship and human rights are available at this site as well.

[9] Oliver Lewis, “The Expressive, Educational and Proactive Roles of Human Rights: An Analysis of the United Nations Convention on the Rights of Persons with Disabilities” in Bernadette McSherry and Penelope Weller eds., Rethinking Rights-Based Mental Health Laws (Oxford: Hart, 2010) 97 at 98.

[10] Gerard Quinn, “Personhood & Legal Capacity:  Perspectives on the Paradigm Shift of Article 12 CRPD” (Paper presented at Conference on Disability and Legal Capacity under the CRPD, Harvard Law School, Boston, 20 February 2010) at 3-5 online: Inclusion Ireland <www.inclusionireland.ie/documents/HarvardLegalCapacitygqdraft2.doc> (last accessed: 20 October 2010).

[11] Gerard Quinn, “Personhood & Legal Capacity:  Perspectives on the Paradigm Shift of Article 12 CRPD” (Paper presented at Conference on Disability and Legal Capacity under the CRPD, Harvard Law School, Boston, 20 February 2010) at 10 online: Inclusion Ireland <www.inclusionireland.ie/documents/HarvardLegalCapacitygqdraft2.doc> (last accessed: 20 October 2010).

[12] It is estimated that between 4% and 10% of those aged 65 and older have experienced abuse – financial, psychological, physical, sexual, etc.   Canada, National Seniors Council, Report of the National Seniors Council on Elder Abuse (Ottawa: National Seniors Council, 2007) at 5 (Chair: Jean-Guy Souliere).

[13] Health Canada, A Report on Mental Illnesses in Canada (Ottawa: 2002).

[14] Canadian Mental Health Association, Ontario, Mental Health and Addictions Issues for Older Adults: Opening the Doors to a Strategic Framework (Toronto: Canadian Mental Health Association, 2010).

[15] The Roeher Institute, Harm’s Way: The Many Faces of Violence and Abuse against Persons with Disabilities (Toronto: Author, 1995).

[16] See Ontario, Legislative Assembly, Select Committee on Mental Health and Addictions,

Final report, Navigating the Journey to Wellness: The Comprehensive Mental Health and

Addictions Action Plan for Ontarians (August 2010) at 15, online:  Ontario, Legislative Assembly <http://www.ontla.on.ca/committee-proceedings/committee-reports/files_pdf/Select%20Report%20ENG.pdf> (last accessed:  5 October 2010).  The Committee recommended a wide range of legislative, policy and service delivery reforms to address the needs of Ontarians affected by mental health and addictions, including a more integrated and comprehensive system of community-based services and supports and particular measures to re-direct those needing services from the criminal justice system to the community supports system.

[17] See The Roeher Institute, Social Well-Being (Toronto: Author, 1993).

[18] Michael Stein & Janet Lord, “Future Prospects for the United Nations Convention on the Rights of Persons with Disabilities” in Oddný Mjöll Arnardóttir and Gerard Quinn, eds., The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden: Martinus Nijhof, 2009) 17 at 25.

[19] Daniel Mont, “Measuring Disability Prevalence,” (March 2007) at 2-3, online: World Bank <http://siteresources.worldbank.org/DISABILITY/Resources/Data/MontPrevalence.pdf> (last accessed: 7 October 2010).  The social model of disability has been written about extensively.  For an overview of its formulation, see C. Barnes and G. Mercer, eds., Exploring the Divide: Illness and Disability (Leeds, UK: The Disability Press, University of Leeds, 1996).

[20] Lana Kerzner, “Providing Legal Services to People with Disabilities,” (April 2009) at 4, online: ARCH Disability Law Centre <http://www.archdisabilitylaw.ca/publications/archPapers.asp> (last accessed: 7 October 2010).   

[21] Article 15 provides as follows:  “States Parties shall accord to women, in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity.  In particular, they shall give women equal rights to conclude contracts and to administer property and shall treat them equally in all stages of procedure in courts and tribunals.”

[22] Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N. Doc A/Res/61/106 [adopted by consensus at the UN on Dec. 13, 2006] [CRPD]. Canada signed the CRPD on March 30, 2007 and ratified it on March 11, 2010. The CRPD came into force on May 3, 2008, Article 12, online: UN Enable <http://www.un.org/disabilities/CRPD/CRPDfull.shtml> (last accessed: 7 October 2010).

[23] Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, 76th plen. Mtg., U.N. Doc A/Res/61/106 [adopted by consensus at the UN on Dec. 13, 2006] [CRPD], Article 12, online: UN Enable http://www.un.org/disabilities/CRPD/CRPDfull.shtml (last accessed: 7 October 2010).

[24] International Disability Alliance, “Legal Opinion on Article 12 of the CRPD” (21 June 2008) at 1,

online: International Disability Alliance <http://www.internationaldisabilityalliance.org/representation/legal-capacity-working-group/> (last accessed 7 October 2010).

[25] International Disability Alliance, “Legal Opinion on Article 12 of the CRPD” (21 June 2008) at 1,

online: <http://www.internationaldisabilityalliance.org/representation/legal-capacity-working-group/> (last accessed 7 October 2010).

[26] Health Care Consent Act, 1996, S.O. 1996, c. 2, s. 4(1); Substitute Decisions Act, 1992, S.O. 1992, c. 30, ss. 6, 45; The Adult Guardianship and Co-decision-making Act, S.S. 2000, c. A-5.3, s. 2(c). 

[27] Law Society of Upper Canada, “Rules of Professional Conduct,” Commentary to Rule 2.02(6) (April 2010) at 12, online: Law Society of Upper Canada  <http://www.lsuc.on.ca/with.aspx?id=671> (last accessed: 7 October 2010).

[28] Human Rights Code, R.S.O. 1990, c. H19, s.3.

[29] Capacity Assessment Office, “Guidelines for Conducting Assessments of Capacity” (May 2005) at I.1, online: Ministry of the Attorney General of Ontario <http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/capacity/2005-05/guide-0505.pdf> (last accessed: 7 October 2010).

[30]International Disability Allian