[*] The authors wish to thank Mary Eberts, Martha Jackman, Kerri Joffe, Laurie Letheren, Ed Montigny, Yvonne Peters and Dianne Wintermute for consulting with us regarding potential pathways to the recognition of disability-related supports.
[2] Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 [Andrews] at paras. 27 and 36, quoting Aristotle, Ethica Nichomacea, trans. W. Ross, Book V3 (Gloucestershire: Clarendon Press, 1925) at 1131a-6.
[3] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 [Eaton] at para. 69.
[4] Purvis v. New South Wales (Department of Education and Training), [2003] HCA 62 [Purvis] McHugh and Kirby JJ., dissenting at para. 86.
[5] Law Commission of Ontario, The Law As It Affects Persons with Disabilities, Preliminary Consultation Paper: Approaches to Defining Disability (June 2009) [LCO, Defining Disability] at 16.
[6] Raymond Lang, “The Development and Critique of the Social Model of Disability” (January 2001), University of East Anglia (unpublished), online: <http://www.ucl.ac.uk/lc-ccr/lccstaff/raymond-lang/DEVELOPMMENT_AND_CRITIQUE_OF_THE_SOCIAL_MODEL_OF_D.pdf> (last accessed: 30 April 2010) at 3.
[7] Phillip French and Rosemary Kayess, “Deadly Currents Beneath Calm Waters: Persons with Disability and the Right to Life in Australia” (2008), UNSW Law Research Paper No. 2008-34 at 8, online: Social Science Research Network, <http://ssrn.com/abstract=1397388> (last accessed: 30 April 2010). A longer version of this article is published in L. Clements and J. Read, eds., Disabled People and the Right to Life: The Protection and Violation of Disabled People’s Most Human Rights (Oxford, UK: Routledge, 2008). See also Jenny Morris, “Impairment and Disability: Constructing an Ethics of Care That Promotes Human Rights” (Fall 2001) 16:4 Hypatia 1 at 2.
[8] LCO, Defining Disability, note 4 at 26-27, 30.
[9] Canadian Charter of Rights and Freedoms, enacted as Schedule B to the Canada Act, 1982, (U.K.) 1982 c. 11 [Charter]. In contrast to the language setting out rights to equality and rights to life, liberty, and security of the person under sections 15 and 7 of the Charter respectively, the provision setting out minority language educational rights under the Charter explicitly imposes a positive obligation on government:
23 (1) Citizens of Canada
(a) whose first language learned and still understood is that of the English or French linguistic minority population of the province in which they reside, or
(b) who have received their primary school instruction in Canada in English or French and reside in a province where the language in which they received that instruction is the language of the English or French linguistic minority population of the province,
have the right to have their children receive primary and secondary school instruction in that language in that province.
The wording of section 23 imposes an obligation on government to provide education to English or French linguistic minorities in that language.
[10] See, for example, the Supreme Court’s statements in Irwin Toy Ltd. v. Québec (Attorney General), [1989] 1 S.C.R. 927 at 1003-1004 [Irwin Toy] and Gosselin v. Québec (Attorney General), [2002] 4 S.C.R. 429, 2002 SCC 84 [Gosselin] at para. 82, and the outcomes in Auton (Guardian ad litem of) v. British Columbia (Attorney General), [2004] 3 S.C.R. 657, 2004 SCC 78 [Auton]; Sagharian v. Ontario (Education), [2008] O.J. No. 2009, 2008 ONCA 411 [Sagharian]; Wynberg v. Ontario, [2006] O.J. No. 2732 [Wynberg]; and Flora v. Ontario (Health Insurance Plan, General Manager), [2008] O.J. No. 2627, 2008 ONCA 538 [Flora].
[11] This was the case in Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 [Eldridge] discussed more fully below.
[12] Convention on the Rights of Persons with Disabilities, U.N. GAOR, 61st Sess., Item 67(b), U.N. Doc. A/61/611 (2006) (entered into force 3 May 2008, ratified by Canada 11 March 2010) [Convention], online: United Nations, <http://www.unhcr.org/refworld/docid/45f973632.html> (last accessed: 15 April 2010).
[13] Law Commission of Ontario, “Learn About Us”, <http://www.lco-cdo.org/en/content/learn-about-us> (last accessed: 17 May 2010).
[14] Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 at para. 77. This case concerned the constitutionality of legislation (i) prohibiting strikes and imposing compulsory arbitration to resolve impasses in collective bargaining and (ii) relating to the conduct of arbitration and limiting the right to arbitrate certain items, and requiring the arbitration board to consider certain factors in making an arbitration award. The majority of the Court answered both questions in the negative, holding that the constitutional guarantee of freedom of association under section 2(d) of the Charter does not guarantee the right to strike, nor does it guarantee a specific form of dispute resolution as a substitute for the right to strike.
[15] Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016, 2001 SCC 94 [Dunmore] at para. 22.
[16] Dunmore, note 14; Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A [Labour Relations Act]. In this case, the majority of the Court found that Ontario’s Labour Relations Act is designed to safeguard the exercise of the freedom to associate. As such, the Labour Relations Act recognizes that without a statutory vehicle, employee associations are, in many cases, impossible. The majority held that in the particular context of this case, where the evidence demonstrated that agricultural workers were substantially incapable of exercising their freedom to associate without legislative protection, the provision at issue violated section 2(d) of the Charter and could not be saved under section 1.
[17] See e.g. Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1 [Suresh]; United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7 [Burns].
[18] Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at 502-503, 511-513. In addition to the specific legal rights listed in sections 8 through 14 of the Charter, the principles of fundamental justice include: intelligible legal standards (R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606); lack of arbitrariness (Chaoulli v. Québec (Attorney General), [2005] 1 S.C.R. 791, 2005 SCC 35 [Chaoulli]); and proportionality (Suresh, note 16; Burns, note 16).
[19] Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, 2000 SCC 44.
[20] B. (R.) v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315.
[21] New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 [G. (J.)].
[22] Chaoulli, note 17.
[23] Irwin Toy, note 9 at 1003-1004.
[24] G. (J.), note 20.
[25] G. (J.), note 20 at paras. 6, 75-80, 91, 116, 119, 120, 126.
[26] Gosselin, note 9. The legislation at issue in Gosselin capped the base amount of welfare payments (by two-thirds of the regular amount) to welfare recipients under the age of thirty, however those under the age of thirty could increase their welfare payments, over and above the basic entitlement, to the same or nearly the same level as those in the thirty-and-over group by participating in training or work experience employment programs. The record before the Supreme Court indicated that although the