The CRPD is a guiding lens for the analysis and recommendations presented in this paper.  The CRPD represents a decade of effort by governments and international agencies and institutions, and extensive investment by the disability rights community in Canada and internationally.  It is the first comprehensive international human rights instrument to consolidate legal recognition of human rights for persons with disabilities.  It is understood to provide an authoritative interpretive lens to other international human rights instruments.  In this section of the paper we explore how the CRPD provides a new foundation for legal capacity law in Canada.

The CRPD is a treaty which came into force on May 3, 2008.  It was a historic event in that it is the first comprehensive international treaty to specifically protect the rights of the world’s population of people with disabilities.[41]  Its purpose 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.”[42]  It prohibits all discrimination on the basis of disability and requires that all appropriate steps be taken to ensure reasonable accommodation.[43]  It also provides several rights for people with disabilities, including rights relating to employment, education, health services, transportation, access to justice, accessibility to the physical environment, and abuse.[44]  The CRPD calls on participating governments to change their country’s laws, as necessary, to comply with its terms.[45]

Canada signed the CRPD on March 31, 2007 and ratified it on March 11, 2010.  By ratifying the CRPD Canada undertook to adopt all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the CRPD, and to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against people with disabilities.[46]  This necessitates a critical review of legal capacity laws and legal provisions in Canada to ensure that they recognize and implement the rights set out in the CRPD.  A careful assessment of the applicability of international law in the context of legal capacity and decision-making must also be undertaken.

The framework we propose in this paper strives to give full effect and recognition of the purpose and terms of the CRPD with respect to the right to legal capacity, in particular to Articles 12, 3 and 5.  Article 12 is particularly relevant to the topics of legal capacity and decision-making as it recognizes the following novel and progressive rights and obligations on the part of States Parties:

·           the right to enjoy legal capacity on an equal basis with others;

·           the obligation of governments to implement measures that provide access to support by those who need it to exercise their legal capacity; and

·           the obligation of governments to ensure safeguards are in place to prevent abuse in relation to measures for the exercise of legal capacity.

The wording of Article 12 – ‘Equal recognition before the law’ – is reproduced in full, as follows:

1.      States Parties reaffirm that persons with disabilities have the right to recognition everywhere as persons before the law.

 

2.      States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.

 

3.      States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.

 

4.      States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law. Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person’s circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body. The safeguards shall be proportional to the degree to which such measures affect the person’s rights and interests.

 

5.      Subject to the provisions of this article, States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit, and shall ensure that persons with disabilities are not arbitrarily deprived of their property.

 

Canada’s ratification of the CRPD included a declaration and reservation, which is of particular relevance to Article 12.  The wording of the declaration and reservation is as follows:

Canada recognises that persons with disabilities are presumed to have legal capacity on an equal basis with others in all aspects of their lives. Canada declares its understanding that Article 12 permits supported and substitute decision-making arrangements in appropriate circumstances and in accordance with the law.

 

To the extent Article 12 may be interpreted as requiring the elimination of all substitute decision-making arrangements, Canada reserves the right to continue their use in appropriate circumstances and subject to appropriate and effective safeguards. With respect to Article 12 (4), Canada reserves the right not to subject all such measures to regular review by an independent authority, where such measures are already subject to review or appeal.

Canada interprets Article 33 (2) as accommodating the situation of federal states where the implementation of the CRPD will occur at more than one level of government and through a variety of mechanisms, including existing ones.”[47] 

It is clear from Canada’s reservation, that there is an intention to maintain both substitute and supported decision-making in Canada’s legal framework.  However, what remains to be seen is how powerful the CRPD will be as a stimulus for reform.

Canada is not unique in its concerns regarding Article 12.  For most states, Article 12 is said to cause the most problems in their internal process of ratification.[48]  Article 12 was a contentious issue in the entire drafting process of the CRPD,[49] and its interpretation remains subject to debate.[50] Canada interprets Article 12 as securing supported decision-making as a right while ensuring that availing oneself of supports does not undermine his/her full legal capacity.  They have taken the position that, while not prohibiting substitute decision-making regimes,[51] Article 12 places particular emphasis on the importance of supported decision-making.[52]  In contrast, others are of the opinion that substitute decision-making is in conflict with the human rights principles enshrined in the CRPD, making it an obsolete approach.[53] 

The language of Article 12 represents a shift from the traditional dualistic model of [mental] capacity versus [mental] incapacity and is viewed as an equality-based approach to legal capacity.[54]  It is recognized as a major breakthrough in view of the continuing predominance in many legal systems which are based on determinations of mental incapacity and guardianship/substitute decision-making regimes.[55]  Inclusion Europe[56] has stated that one of the most important aspects of the CRPD for people with intellectual disabilities are its principles regarding legal capacity[57] and Quinn has opined that Article 12 “…is the absolute core of the CRPD!”[58]

Article 3 of the CRPD also gives important direction in relation to legal capacity, as it sets out general principles which include the following:

·           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; and,

·           Accessibility.

In addition, we argue in this paper that Article 5 of the CRPD, on “Equality and Non-Discrimination,” has a direct bearing on how States Parties and public and private entities must support and interact with individuals with respect to enjoying and exercising their right to legal capacity.  The following paragraphs of article 5 are particularly relevant:

2. States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.  

3. In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided. 

Article 2 of the CRPD defines reasonable accommodation as follows:

necessary and appropriate modification and adjustments not imposing