How do we formulate the duties to ensure people have supports to maximize exercise and enjoyment of their autonomy and legal capacity? There are two broad classes of parties implicitly and explicitly identified in the language of the CRPD. First, States Parties have an obligation to take “appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” (Article 12(3)). Second, States Parties have an obligation to “take all appropriate steps to ensure that reasonable accommodation is provided” (Article 5(3)). The latter obligation also implicates third parties to decision-making processes. How do these obligations of both States Parties and other third parties intersect in a particular decision-making process to maximize exercise of legal capacity? What is the positive duty of the state? What is the duty of third parties?
In this section we articulate the legal duties to accommodate of both the state and third parties in relation to supports. The accommodation and supports framework described in this section is somewhat novel but builds upon the firm foundation of Canada’s human rights laws and the Charter. In order to implement this framework, relevant provisions would need to be incorporated into all legal capacity-specific legislation and apply to all interactions where capacity is in question.
A. What Does Accommodation in Decision Making Mean?
People plan their lives on the basis that they have a right to live as they choose. In contrast, an individual who has been found to be legally incapable does not have the freedom to make his/her personal choices; decisions are imposed by others. Reasonable accommodation is required to avoid such differential treatment. It maximizes a person’s right to prove his/her ability to make capable decisions, demonstrate his/her capacity to others and thus exercise legal capacity on an equal basis with others.
Accommodation can be relevant whenever an individual interacts with a third party. An individual with an intellectual disability may not, at the outset, understand the content of the information exchange between him/herself and the third party. For example, he/she may not understand the attendant risks of a medical procedure, the implications of opening a bank account or the meaning of a power of attorney. There are a broad range of accommodations that may be required to enable a person to understand information sufficiently to make these kinds of decisions, including:
· informal assistance from family and friends;
· plain language assistance, assisted/adaptive communication, visual aids, etc.;
· supported decision-making representatives/networks; and,
· interpreters (sign and spoken language) and intervenors (for people who are deaf-blind).
What follows are two illustrations of the manner in which supports accommodate a person to make her own decisions, without which she might be unable to do so. These scenarios relate to Jane, who has an intellectual disability.
· Jane would like her mother to do her banking for her. For her mother to have the legal authority to do so in Ontario, Jane could make a power of attorney but would need to meet the legal test of capacity to do so. This would require her to understand what a power of attorney is and what the implications are of making one. If, at the outset, a lawyer asks Jane what a power of attorney is and what the effect of making one is, the lawyer may conclude that she does not meet the test of capacity to make one. This is because, when in the lawyer’s office, Jane feels intimidated by a person of authority, is not able to explain a power of attorney in her own words, looks at the lawyer blankly and prefers to talk about her upcoming vacation. In general, Jane expresses herself using words and gestures that strangers do not know how to interpret, but which are meaningful and clear to people who know her well. It is likely that if her best friend explains the concept of a power of attorney in language that she understands, and does so at her pace in non-intimidating surroundings, she will learn the meaning and implications of the document. In this way, accessing supports provides her with the vehicle to exercise and demonstrate her capacity. The supports accommodate her to make decisions equally with others.
· Jane’s doctor believes she needs a medical procedure. Providing accommodation in the form of supports may require the doctor to give her some written material in plain language which explains the procedure and its risks and benefits. If Jane takes it home and spends some time reviewing it, she may come to a point where her understanding of the procedure is sufficient to make her own decision. Without material in plain language and the benefit of time, Jane might not understand the procedure. Without these accommodations, the doctor might well conclude that she is incapable, thus invoking a substitute decision-making alternative.
In summary, an ability to make a decision is not black and white. It can be enhanced by accommodations in that they facilitate individuals with disabilities to be able to exercise their right to make decisions as do others. As we describe in the next section, where the Charter or human rights laws apply and accommodation is a legal requirement, providing accommodation for the decision-making process too, is a legal requirement.
B. Legal Basis for Accommodation
There is a strong legal basis mandating a duty to accommodate in maximizing legal capacity. This emanates from the duty to accommodate found both in Canada’s human rights laws and jurisprudential interpretation in the context of discrimination in s.15 of the Charter. The promotion and protection of human rights and fundamental freedoms, along with the prohibition against discrimination and the duty to accommodate, which feature so prominently in Canadian law, are central tenets of the CRPD as well. As we have noted above, the right to equality and non-discrimination is recognized in Article 5 of the CRPD, which establishes that States Parties have an obligation to ensure the provision of reasonable accommodation.
The concept of accommodation describes a legal duty to take positive action to accommodate the unique needs of people with disabilities. More specifically, “‘Accommodation’ refers to what is required in the circumstances to avoid discrimination.” Its goal is to avoid exclusion by ensuring the fullest possible participation in society. This duty to accommodate, however, is not unlimited in that accommodations are only required to the point of undue hardship. The Supreme Court of Canada in Council of Canadians with Disabilities v. VIA Rail Canada Inc., in relation to people with disabilities, elaborated on the duty to accommodate to the point of undue hardship, as follows:
The concept of reasonable accommodation recognizes the right of persons with disabilities to the same access as those without disabilities, and imposes a duty on others to do whatever is reasonably possible to accommodate this right. The discriminatory barrier must be removed unless there is a bona fide justification for its retention, which is proven by establishing that accommodation imposes undue hardship on the service provider.
The duty to accommodate requires that accommodations be individualized. This principle has been articulated by the Supreme Court of Canada in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur. The Supreme Court has recognized that accommodation is a highly individualized process that must be responsive to individual needs and must be implemented on an individualized basis. For example, accommodating a person with an intellectual disability may involve support people while accommodating an individual with an acquired brain injury may simply involve allowing more time to process information.
The process of accommodation has been recognized to be one that is a joint obligation. The person asking for accommodations, as well as those responsible for providing them, must co-operate in the accommodation process. Thus, a person with a disability, or his/her supporters, have a duty to advise third parties of the intention to rely on support persons for assistance in the decision-making process, and to advise on how they wish this to be done.
C. Accommodation, the Canadian Charter of Rights and Freedoms and Human Rights Laws
Both the Charter and human rights legislation protect equality rights. And, in fact, “… there is considerable cross-fertilization between statutory human rights cases and equality cases decided under the Charter.” However, while human rights legislation applies to both private and public actors, the Charter only applies in the public sphere.
The federal government and each Canadian province and territory have their own human rights laws which exist to protect individuals from discrimination and promote equality. These have pre-eminent importance in Canada’s legal framework, and are described as fundamental laws which are “quasi-constitutional” in nature. These human rights statutes apply to several areas of activity, including the provision of services, such as those of lawyers, banks and health professionals.
The duty to accommodate in relation to the provision of services is explicitly recognized in most human rights statutes in Canada. Importantly, Supreme Court of Canada commentary on the duty to accommodate is relevant across jurisdi