III. THEORETICAL FRAMEWORK & PRINCIPLES2017-03-03T18:35:37+00:00

In this section, we develop the theoretical framework that forms the basis of the principles and the outcome measures used for the Rights-Outcome Lens.  This theoretical framework includes both new approaches to the conceptualization of disability and legal and policy sources.

 

A.  Conceptualizations of Disability


The last fifty years have witnessed a significant shift in the way that “disability” is understood and conceptualized.[5]  This shift can be seen both within disability scholarship[6] as well as, to a degree, in the approaches to disability adopted by governments and policy-makers. It is beyond the scope of this paper to do more than briefly review the major changes in conceptualization. 

Conceptualizations situating disability as the problem of an individual or individual “pathology”[7] have dominated the last century. These conceptualizations have generally been divided into two subgroups: the bio-medical approach and the functional limitations approach.

The bio-medical approach assumes that disability is caused primarily by an impairment, that is, a disease, disorder, physical or mental condition that is aberrant or abnormal.  It is because of this impairment that people are excluded from participation in society. Under the bio-medical model, medical practitioners are considered to be the experts regarding the nature, causes and appropriate responses to disability. Income supports or other benefits are provided on the basis of charity, with persons with disabilities being considered the ‘deserving poor’.[8]

While still identifying disability as an individual problem, the functional limitations model does not focus on the particular biomedical impairment but rather the impact that the impairment has on the individual’s ability to participate in social roles such as employment. Under this approach, it is possible to have an impairment without a disability if that impairment does not impede a person’s ability to function. Here, the range of expertise regarding disability is extended to include physiotherapists, occupational therapists and other professionals.[9]

Beginning in the 1960’s, disability activists and theorists began to develop new conceptions of disability, noting that by focusing only on the biological or functional condition of the individual, existing models failed to recognize the role played by society in limiting and enabling people. Rather than seeing disability as inherent in an individual, these new approaches see disability resulting from attitudes and conditions within society. Under the social model, disability is caused by socially constructed barriers, including both societal attitudes and physical and policy structures that serve to exclude or “disable” individuals. Various commentators have chosen to categorize and describe subgroups under the social model differently. Marcia Rioux, for example, distinguishes between ‘environmental’ and ‘human rights’ models. [10] The former model focuses on disability as the result of individuals reacting with social, political and economic barriers in their environments and on identifying and removing barriers to participation and inclusion. The environmental model has been criticized as being not sufficient on its own since it does not adequately consider impairment and does not give weight to the embodied experience of persons with disabilities.[11]  Rioux’s human rights model looks beyond particular environments to examine broad systemic factors that keep some people from participating as equals in society including:  income and social status, social support networks, social environments, physical environments and impairment. This model emphasizes the role that social attitudes and systems that appear neutral on their face play in creating and perpetuating disadvantage. Under this approach, impairment is recognized to the extent necessary to design accommodations to permit persons with disabilities to achieve substantive equality.

Joan Gilmour is another scholar who adopts a combined approach that begins with the social model recognizing the political causes of disability within society and social organizations but still taking into account the embodied experience of a condition or impairment as lived.[12]

The social model of disability is now accepted by many scholars.  This conception of disability is also included in the United Nations Convention on the Rights of Persons with Disabilities (CRPD)[13]  which Canada ratified on March 11, 2010, becoming legally bound by its terms. In paragraph (e) of its Preamble, the CRPD states:

Recognizing that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others.[14]

 

The CRPD thus recognizes both the reality of impairment as well as the social approach’s emphasis on the environmental, social and attitudinal barriers that serve to cause disability. It is this conceptualization of disability that we have adopted as part of the framework for the Rights-Outcome Lens. 

 

B.  Legislative and Policy Context

Our framework also includes legislative and policy sources.

In Ontario, the rights of persons with disabilities are protected by both the Canadian Charter of Rights and Freedoms (“the Charter”)[15] and the Ontario Human Rights Code.[16] Section 15(1) of the Charter establishes equality before and under the law, without discrimination on the basis of a number of enumerated grounds including mental and physical disability. Section 15(2) of the Charter protects laws, programs and activities that aim to improve the conditions of disadvantaged groups or individuals, including people with mental or physical disabilities.

The Ontario Human Rights Code (“Code”) prohibits discrimination on the basis of disability in the provision of services, goods and facilities; employment, housing and accommodation; contracts and memberships in professional associations and unions. The Preamble of the Code clearly recognizes “the inherent dignity, worth and equal rights of all; the creation of a climate of mutual respect and understanding and the ability to contribute and participate in the community.”[17]

The federal, provincial and territorial governments of Canada have developed a number of policy documents related to disability. In 1998, they adopted a common document stating their policy goals with respect to disability issues called In Unison: A Canadian Approach to Disability Issues.[18] In Unison outlines the following vision of persons with disabilities in Canada based on the principles of equality, accommodation of difference, inclusion and independence:

Persons with disabilities participate as full citizens in all aspects of Canadian society. The full participation of persons with disabilities requires the commitment of all segments of society. The realization of the vision will allow persons with disabilities to maximize their independence and enhance their well-being through access to required supports and the elimination of barriers that prevent their full participation. [19]  

The UN Convention on the Rights of Persons with Disabilities also includes a key provision establishing a number of cross-cutting general principles in Article 3 which states:[20]

The principles of the present Convention shall be:

(a) Respect for inherent dignity, individual autonomy including the freedom to
      make one’s own choices, and independence of persons;

(b) Non-discrimination;

(c) Full and effective participation and inclusion in society;

(d) Respect for difference and acceptance of persons with disabilities as part of  
      human diversity and humanity;

(e) Equality of opportunity;

(f)  Accessibility;

(g) Equality between men and women;

(h) Respect for the evolving capacities of children with disabilities and respect for 
      the right of children with disabilities to preserve their identities.

 

C.   Core Principles

Drawing from the Charter, the Ontario Human Rights Code, case law, policy documents and the CRPD, the Law Commission of Ontario preliminarily adopted the following six principles as the focus of its examination of the Law as it Affects Persons with Disabilities:[21]

1. Respect for the dignity and worth of persons with disabilities,
2. Autonomy and independence,
3. Inclusion and participation,
4. Equality and non-discrimination,
5. Recognition that humans vary infinitely along a spectrum of abilities and that          society must accommodate these variances into its mainstream, and
6. Respect for the diversity among persons with disabilities in the experience of
    disability.

We have adopted these principles as the core principles of the Rights-Outcome Lens. 

 

 

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