ENDNOTES2017-03-03T18:35:38+00:00

[1] Throughout this Paper, the LCO has made use of the stories and perspectives of persons with disabilities conveyed to us during the consultations, as illustrations of the way that persons with disabilities may relate to the law. The LCO has selected quotes and stories that illustrate themes and concerns that surfaced repeatedly during the consultations. We did not attempt to investigate or validate each particular incident recounted.

[2] This categorization of the law as it affects persons with disabilities is explored more fully in the LCO’s preliminary consultation paper for this project, Preliminary Consultation Paper: Approaches to Defining Disability (July 2009), online: <<http://www.lco-cdo.org/en/disabilities-threshold-paper>>.

[3] Examples include the provision of special education programs under the Education Act, the provision of income supports for persons with disabilities under the Ontario Disability Support Programs Act, and the day nursery programs provided for children with disabilities under the Day Nurseries Act.

[4] For example, under the Evidence Act, persons who are found to lack mental competency may not have their evidence form the basis of a legal decision unless it is otherwise corroborated, a measure which may have serious consequences for the ability of persons with mental disabilities to seek redress where they have been abused or exploited: see R.S.O. 1990, c. E.23, s. 14.. 

[5] The new regulations under the Accessibility for Ontarians with Disabilities Act address some of the accessibility-based communications barriers experienced by persons with disabilities: see O. Reg. 191/11, Integrated Accessibility Standards, in force July 1, 2011.

[6] According to 2001 data collected by Statistics Canada, 36.5% of Ontarians with disabilities between the ages of 15 and 64 had less than a high school education, while 11.5% of that group had completed university. By comparison, only 23.7% of Ontarians without disabilities between the ages of 15 and 64 had less than a high school education, and 22.2% had completed university – a striking differential with lifelong implications for employment, income and well-being: Statistics Canada, Education, Employment and Income of Individuals With and Without Disabilities, Participation and Activity Limitation Survey (PALS), 2001 (Ottawa: Statistics Canada, 2003) at 19 and 35. These are overall figures; breaking them down on the basis of certain factors (such as Aboriginal status) would show lower average levels for some groups than for others.

[7] As one participant in the LCO’s Toronto Focus Group for Racialized Persons with Disabilities (May 18, 2010) told us: “There’s the cognitive, then there’s also physical. It’s almost like they know you’re weak because they have your file, and they know how far they can keep pushing you and dismiss you. I was just dysfunctional for 6 years, I still am, where I don’t really leave my house, I’m housebound for the most part, and they seem to know that and they capitalize on it. So if you’re messed up mentally and physically, you’re a bonus for them, they don’t need to help you because they know they have you.” 

[8] During the consultations, the LCO heard that this was particularly a problem for persons with complex needs, such as individuals with mental health disabilities.

[9] This was a dominating theme during the LCO’s two focus groups with Deaf individuals. Focus group participants shared many stories of barriers faced in all areas of life due to lack of accessible sign language interpretation. The LCO also heard that some institutions won’t deal with individuals through interpreters or Bell Relay due to “third party” rules, creating major hurdles in accessing services. This issue was highlighted as a significant barrier to access to justice in K. Cohl and G. Thompson, Connecting Across Language and Distance: Linguistic and Rural Access to Legal Information and Services (Law Foundation of Ontario: December 2008) at  20.

[10] See Mona Paré, “La Participation des personnes handicapées dans les decisions qui les concernent: L’exemple de l’éducation”, Paper prepared for the Law Commission of Ontario (July 2010), online: Law Commission of Ontario <www.lco-cdo.org>. Paré writes at 15: “Participer, dans le contexte social, implique la levée de tous les obstacles qui empêchent les personnes handicapées d’être pleinement incluses dans tous les secteurs et dans toutes les activités de la société.”

[11] Persons with disabilities are disproportionately likely to live in poverty. For example, within the age cohort 25 to 34, a Canadian without a disability can expect to earn an income on average of $33,078, while a Canadian with a disability within the same age cohort can expect an income of a third less, $23,087. And while Canadians without disabilities can expect to increase their incomes until the age of

 

55, the incomes of persons with disabilities actually decrease on average after the age of 35. Canadians living without a disability in the age cohort 35 to 44, report an average income of $36,553, while Canadians living with a disability in the same age cohort have an average income of $22,447, almost a $15,000 discrepancy in reported income: PALS 2006: Tables Part V at 8-10.

[12] Note 6.

[13] Information from Statistics Canada’s General Social Survey confirms that persons with disabilities are at greater risk for violence and victimization. Persons with activity limitations are victims of both physical assault and sexual assault about twice as often as persons without limitations. Those who are most at risk are persons with disabilities who are living in an institutional setting, have severe disabilities, or have mental disorders: S. Perreault, Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems (Canadian Centre for Justice Statistics: Ottawa, May 2009) at 8.

[14] See for example PALS 2006: Tables Part V at 11.

[15] For example, Legal Aid is available only in limited amounts, and for specific types of issues, so that low-income individuals may not have access to the full range of legal remedies that are available to others.

[16] Government of Canada, Advancing the Inclusion of People with Disabilities (December 2002) at 5.

[17] During the LCO’s consultations, much was said about the difficulties of accessing services, supports and accommodations outside of major urban centres. For example, it was the LCO’s experience that arranging for real-time captioning and American Sign Language interpretation in northern Ontario was extremely challenging, even with considerable lead time.

[18] Gerard Quinn & Theresia Degener, “The Moral Authority for Change: Human Rights Values and the Worldwide Process of Disability Reform” in Gerrard Quinn and Theresia Degener, eds., Human Rights and Disability: The Current Use and Future Potential of United National Human Rights Instruments in the Context of Disability (New York: United Nations Publication, 2002) 9 at 17.

[19] For a brief history of the treatment of persons with intellectual disabilities in Ontario, see Kerri Joffe, ARCH Disability Law Centre, Enforcing the Rights of Persons with Disabilities in Ontario’s Development Services System (Law Commission of Ontario: June 30, 2010) at ss. 12 – 20, online: <<www.lco-cdo.org>>.

[20] Environics Research Group, Canadian Attitudes Towards Disability Issues, A Qualitative Study: Final Report, prepared for the Government of Canada Office of Disability Issues (2004) at s 9, 32-34.

[21] Michael Bach and Lana Kerzner, A New Paradigm for Autonomy and the Right to Legal Capacity (Law Commission of Ontario: November 2010), at  6, online: <<www.lco-cdo.org>>. Also see Kerri Joffe, ARCH Disability Law Centre, Enforcing the Rights of Persons with Disabilities in Ontario’s Development Services System (Law Commission of Ontario: June 30, 2010) at 28 (available online at www.lco-cdo.org).

[22] This point is made in a the research paper prepared by the Income Security Advocacy Centre, Denial by Design: the Ontario Disability Support Program (Toronto, 2003), online: <<http://www.odspaction.ca/sites/odspaction.ca/files/denialbydesign.pdf>>

[23] Bach and Kerzner, note 21, at p. 32.

[24] Meeting of LCO staff with representatives of the Coalition Against Psychiatric Assault, January 9, 2011.

[25] A crucial financial limitation for people living with disabilities, which flows from employment is the relationship between employment and government support. In many instances social and economic supports are available to people with disabilities only if they are unemployed. This is a policy choice meant to ensure an income for people with disabilities who are unemployable. However, the flip side of this policy choice is that many people living with disabilities who are employable but who may not be able to command a salary higher than what they receive from governmental support choose not to participate in the workforce, for want of a higher income. For example, according to the PALS survey data, people with learning limitations identified numerous barriers discouraging them from looking for jobs, and the second and third most reported barriers (behind feelings of inadequate training reported at 28%) were: 20.5% were concerned that they would lose some or all of their income and 18.4% were concerned that they would lose some or all of their additional supports (i.e. housing or a drug plan).

[26] Kerri Joffe, ARCH Disability Law Centre, Enforcing the Rights of People with Disabilities in Ontario’s Developmental Services System (Law Commission of Ontario: June 30, 2010), at 31, online: <<www.lco-cdo.org>>. The author notes that stakeholders have described situations where persons with disabilities who made complaints were reprimanded or harmed by their support worker, or were the subject of threats, for instance to cut off ODSP benefits.

[27] LCO Focus Group, Toronto, Organizations, May 13, 2010.

[28] For a thorough discussion of the complex legal issues surrounding rights to supports for persons with disabilities see Meryl Zisman Gary, Cara Wilkie, & David Baker, Bakerlaw “The Law As It Affects Persons with Disabilities: A Case Study Paper on Rights to Supports” (July 2010), online: Law Commission of Ontario <<www.lco-cdo.org>>.

[29] Office of the Auditor General of Ontario, 2008 Annual Report at 381. Also see the update on this issue in the Auditor General’s 2010 Annual Report at 392.

[30] United Nations, Convention on the Rights of Persons with Disabilities, 13 December 2006, G.A. Res. 61/106 (CRPD). Article 1 of the Convention states: “The purpose of the present Convention 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” (4).  Along with the “equal and inalienable rights” of all persons, the Convention recognizes dignity as “the foundation of freedom, justice, and peace in the world” (1).  The Convention lists “[r]espect for inherent dignity” as one of the general principles guiding the document, and articulates a strong connection between the principles of non-discrimination and dignity.  In Article 3(a), it states that any act of discrimination on the basis of disability “is a violation of the inherent dignity and worth of the human person” (5).

[31] Human Rights Code, R.S.O. 1990, c. H.19 [Code].  The preamble states that states that part of its purpose is the “recognition of the inherent dignity […] of all members of the human family” and that this purpose is in agreement with the Universal Declaration of Human Rights.

[32] “Dignity” was treated as central to the meaning of equality in section 15 of the Charter in Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12 [Law].  In R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42 [Kapp], the Court acknowledged that Law had been interpreted in a way that resulted in making it more difficult for claimants to prove their claims (para. 22). As a result, the principle of dignity will remain part of the analysis in section 15 but may take on a more peripheral role in future cases.

[33] Chief Justice Dickson identified dignity and other values reflected in the LCO principles as “essential” to a free and democratic society; these values “embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society”: R. v. Oakes, [1986] 1 S.C.R. 103, at para. 64. In Blencoe, Bastarache J., speaking for the majority, stated, “The Charter and the rights it guarantees are inextricably bound to concepts of human dignity. Indeed, notions of human dignity underlie almost every right guaranteed by the Charter….”: Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at para. 76 [citations omitted]. The pervasiveness of human dignity as an underlying value was affirmed in R. v. Kapp: “There can be no doubt that human dignity is an essential value underlying the s. 15 equality guarantee. In fact, the protection of all of the rights guaranteed by the Charter has as its lodestar the promotion of human dignity”: [2008] 2 S.C.R. 483, 2008 SCC 41, at para. 21 (per McLachlin C.J. and Abella J., for the majority).

[34] Law v. Canada (Minister of Employment and Immigration), [1999] S.C.J. No. 12 at para. 53.

[35] Law, above note 34 at para. 51.

[36] Council of Canadians with Disabilities v. Via Rail Canada, [2007] S.C.J. No. 15 [Via Rail].

[37] British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees’ Union (B.C.G.S.E.U.) (Meiorin Grievance), [1999] S.C.J. No. 46 [Meiorin].

[38] CRPD, see note 30. Preamble, (i) & (m); Article 3(d).  Specifically, the CRPD at Preamble (p) emphasizes diversity through its recognition of the intersectional experiences of some persons with disabilities.  This recognition is also articulated in Article 6 (women with disabilities) and Article 7 (children with disabilities).

[39] Code, see note 31, Preamble and s.17, respectively. The ODA also recognizes the principle of respect for diversity and difference in its preamble in the context of the provision of educational services and welfare assistance.  Similarly, the Ontario Education Act emphasizes the need for individualized assessment and accommodation to meet the needs of exceptional pupils in s. 1.

[40] Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, on accommodation in education and Central Okanagan School District No. 23 v. Renaud, [1992] 2 S.C.R. 970, on accommodation in the employment context.

[41] Joffe, note 26 at 39.

[42] Richard K. Scotch and Kay Schriner, “Disability as Human Variation: Implications for Policy” (1997) 549 Annals of the American Academy of Political and Social Science 148 at 154; Doug Surtees, “What Can Elder Law Learn from Disability Law?” in Israel Doron, ed., Theories on Law and Ageing: The Jurisprudence of Elder Law (Heidelberg, Germany: Springer, 2009) 93 at 99 citing Michael Ashley Stein, “Disability Human Rights” (2007) 95 Cal. L. Rev. 75 at 75 and 86.

[43] Zola, “Toward the Necessary Universalizing of a Disability Policy” (1989) 67 The Milbank Quarterly 401 at 410 [“Toward the Universalizing of Disability Policy”].

[44] Scotch and Schriner, above note 42 at 158; Jerome E. Bickenbach, Somnath Chatterji, E.M. Bradley, T.B. Usten, “Models of Disablement, Universalism and the International Classification of Impairments, Disabilities and Handicaps” (1999) 48 Social Science & Medicine 1173 at 1183.

[45] CRPD, note 30, Art. 1(f). Article 2 states that “’Universal design’ means the design of products, environments, programmes and services to be usable by all people, to the greatest extent possible, without the need for adaptation or specialized design”; however,  universal design “shall not exclude assistive devices for particular groups of persons with disabilities where this is needed.”

[46] See the Ontario Human Rights Commission, Policy and Guidelines on Disability and the Duty to Accommodate (Toronto: 2000), at section 4.1, online: <<www.ohrc.on.ca/en/resources/policies/policydisaccom2>>.

[47] OHRC, note 46 at 6.

[48] To take this point further, someone who identifies with the Deaf community will take a different view of how to respond to this physical condition from someone who does not consider him or herself part of the Deaf community. The physical condition is the same, but the perspectives and experiences may be very different.

[49] In Unison 2000, online: <<www.socialunion.gc.ca/pwd/union/unison_e.html>>..

[50] CRPD, note 30, see specifically the preamble, Articles 3(a), 25 & 26.  The preamble at (n) states that the CRPD recognizes “the importance for persons with disabilities of their individual autonomy and independence, including the freedom to make their own choices”.  It is important to note that this articulation of autonomy and independence in the CRPD is not confined to a physical dimension and instead encompasses the opportunity or ability for persons with disabilities to make their own decisions.  This suggests that persons with disabilities are to have the same freedoms that all members of the human family have to make their own choices.  It is not limited, as it is sometimes in s.7 jurisprudence, to fundamental personal decisions.  Article 3(a), which articulates general principles by which the Convention is guided and bound, articulates the first principle as “[r]espect for inherent dignity, individual autonomy, including the freedom to make one’s own choices, and independence of persons”.  The Convention also mentions the principle of autonomy and independence in the context of peer support, habilitation, and rehabilitation (Art. 26) and in relation to health (Art. 25).

[51] Law, note 34, at para. 53.

[52] Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519.

[53] World Health Organisation, A glossary of terms for community health care and services for older persons (Kobe, Japan: WHO, 2004) at 10 (Technical Report Vol. 5 WHO Centre for Health Development Ageing and Health. WHO/WKC/Tech.Ser./04.2), online: <<http://whqlibdoc.who.int/wkc/2004/WHO_WKC_Tech.Ser._04.2.pdf>>.

[54] R. v. Morgentaler, [1988] 1 S.C.R. 30 [Morgentaler].

[55] Paula Pinto, ed., “National Law and Policy Monitoring Template: Extended

Version” (Toronto: Disability Rights Promotion International, 2008) at 4.

[56] Jennifer Nedelsky, “Reconceiving Autonomy: Sources, Thoughts, and Possibilities”

(1989) 1:7 Yale J. Int’l L. 7 at 12.

[57] Jennifer Nedelsky, “Reconceiving Rights as Relationship” (1993) 1 Rev. Const. Stud. 1, at 8.

[58] World Health Organization, “Active Ageing: A Policy Framework”, A Contribution of the World Health Organization to the Second United Nations World Assembly on Ageing (April 2002) at 12-13, online: <<http://www.who.int/ageing/publications/active/en/index.html>> at 34.

[59] Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] S.C.J. No. 15 at para. 162.

[60] In Unison 2000, note 49.

[61] Eaton v. Brant County Board of Education (Court of Appeal for Ontario) 1995 CanLII 980 (ON C.A.) at p. 20.

[62] CRPD, note 30, Preamble (e), Art. 24, 29, 30..

[63] Code, note 31, Preamble.

[64] Accessibility for Ontarians with Disabilities Act, 2005, S.O. 2005, c. 11 (AODA).

[65] Provisions within the Planning Act, R.S.O. 1990, c. P.13, s. 2 (h.1), s. 41(4)(1), (2)(f), (7)(a)(4.1) & s. 51(24) and the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, O. Reg 299/10, s. 4, also promote the principle of inclusion, participation and accommodation.  Similarly, the Ontarians with Disabilities Act, S.O. 2001, c. 32, and the Services and Supports to Promote the Social Inclusion of Persons with Developmental Disabilities Act, S.O. 2008, c. 14 are both intended to advance the principle of inclusion, participation and accommodation in their entirety.

[66] For example, Eaton v. Brant County Board of Education, note 40, and Granovsky v. Canada (Minister of Employment and Immigration), [2000] S.C.J. No. 29. In Canadian Association of the Deaf v. Canada, the CAD successfully maintained that “the federal government’s Guidelines for administration of its Sign Language Interpretation Policy den[ied] deaf and hard of hearing Canadians the opportunity to fully participate in government programs” and thus contravened section 15 of the Charter (Canadian Assocation of the Deaf v. Canada, [2007] 2 F.C.R. 323 (FC)).

[67] Frédéric Mégret, “The Disabilities Convention: Human Rights of Persons with Disabilities or Disability Rights?” (2008) 30 Human Rights Quarterly 494 at 509.

[68] Gary Malkowski, Audism Workshop, Canadian Hearing Society and Toronto Association of the Deaf (3 June 2010).

[69] Eaton, note 40, the Council of Canadians with Disabilities (CCD), the Canadian Association for Community Living (CACL), People First, and the Confédération des Organismes de Personnes Handicapées du Québec (COPHAN) advocated for a presumption towards integration in the educational setting for students with disabilities: see Sarah Armstrong, “Disability Advocacy in the Charter Era” (2003) 2 J.L. & Equality 33 at para. 53.

[70] CRPD, note 30, articles 14, 15, 16, 28 and 25.

[71][71] CRPD, note 30, Preamble: “Recognizing that women and girls with disabilities are often at greater risk, both within and outside the home of violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation”.

[72] Samuel Perreault, Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity Limitations or Other Health Problems (Canadian Centre for Justice Statistics: Ottawa, May 2009) at 8.

[73] Perreault, note 72 at 11. Also see  DAWN – RAFH Canada, Response to the Law as it Affects Older Adults Consultation Paper (Law Commission of Ontario: July 7, 2008) at 1.

[74] CRPD, note 30, Preamble.

[75] Unison, note 49.

[76] For a description and analysis of the concepts of progressive realization and the duties to respect, protect and fulfill, see Maria Green, “What We Talk About When We Talk About Indicators: Current Approaches to Human Rights Measurement” 23 Human Rights Quarterly 1062 at 1062-1097.

[77] “Inclusive design” requires that a system be established in a way that allows everyone to participate; if necessary, it may include accommodations. See Scott Raines, “What is Universal or Inclusive Design”, Ashoka Changemakers (June 4, 2009), online: Ashoka, <<http://www.changemakers.com/node/52208??.

[78] Green, note 76, at 1062-1097.

 

 

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