As a starting point for developing an evaluative framework for the law as it affects persons with disabilities, it is important to develop a broad understanding of the current relationship of persons with disabilities with the law.
What Do We Mean By “Law”?
The term “law” as it is used for this project includes both statutes and regulations. It also includes the policies through which statutes and regulations are applied, and the strategies through which statutory provisions, regulations and policies are implemented. As such, the implementation of laws is as important as their substance. Laws may be beneficial in intention and on paper, but in practice fall short of their goals or even have negative effects.
Ontario has a very wide array of laws that may affect persons with disabilities. In understanding the law as it affects persons with disabilities, it is helpful to think of the law in four major categories:
Laws of general application: In addition to the myriad of laws that explicitly reference “disability”, “handicap” or terms related to mental “capacity”, all of the laws of general application that affect the populace at large will also affect persons with disabilities. This includes a very wide range of laws, such as those related to family creation and dissolution, consumer protection, residential tenancies and zoning, and protection of privacy. Because the experiences of persons with disabilities may differ from those of their non-disabled peers, whether because of their impairments or because of socially-constructed barriers, laws of general application may have a different or greater impact on persons with disabilities than on others.
Laws promoting the removal of barriers for persons with disabilities: Laws such as the Accessibility for Ontarians with Disabilities Act, the Ontarians with Disabilities Act, and the Ontario Human Rights Code are unique in that they have as central roles the recognition of persons with disabilities as a group that has experienced disadvantage, and the removal of barriers in order to achieve full equality and participation for persons with disabilities.
Laws that provide access to benefits, supports and accommodations for persons with disabilities: This is the largest category of laws directly targeted to persons with disabilities. These laws aim to recognize the particular circumstances of persons with disabilities and to provide access to programs or protections aimed at ameliorating disadvantage, providing supports or enhancing opportunities. Some of these have disability-related needs as their core focus, while others are directed to the population at large but provide specific accommodations or supports for persons with disabilities.
Laws that restrict the roles, activities or decisions of persons with disabilities: Laws not infrequently identify specific capacities or abilities – most often, legal decision-making capacity – as a requirement for participation in various roles or decisions. Frequently this restricts roles or opportunities for persons with psychiatric, cognitive or intellectual disabilities.
These laws differ considerably in their subject matters, approaches and forms, but the LCO’s research and public consultations identified a number of concerns with the law as it affects persons with disabilities that apply across these categories and types. These are explored below.
B. Taking Persons with Disabilities Into Account
Well, the laws are written by able-bodied people. You know, they don’t sort of vet them. I guess they have some sort of experts, but you know, I worked for the Ontario government for a long time and I saw the policy. I tried to point out where the barriers were, actually in the Cabinet Submissions process in the first place, it’s like the tail wagging the dog. We’re too small of a group to really take that seriously. You know, I think that it’s just peppered throughout all the legislation, it’s really coming from that perspective.
LCO Focus Group, Toronto, May 12, 2010
During the LCO’s Spring 2010 Public Consultations, individuals with disabilities consistently raised concerns regarding the lack of a consistent formal mechanism to provide a voice for persons with disabilities in the development of laws, policies and programs that affect them.
[I]t’s so important that we have organizations run by people with disabilities or who advocate, or that you have anything that you are doing about people with disabilities to have people with disabilities at the table – because, otherwise, it’s just going to be, you know, the lens that people use will be the one that they are most familiar with. And people are familiar with an able-bodied or, you know, able lens, they are going to assume that you can’t do something as opposed to what your abilities are, and how inventive people are.
LCO Focus Group, Toronto, May 12, 2010
The concerns, experiences and perspectives of persons with disabilities are not adequately reflected in laws, policies and practices, whether laws of general application or those specifically focused on persons with disabilities. As a result, laws may not adequately or appropriately address the circumstances of persons with disabilities.
What Do We Mean By “Disability”?
No single definition of “disability” can capture the complexity of the experiences of persons with disabilities. The Supreme Court of Canada has stated that in interpreting “disability”,
…[A] multi-dimensional approach that includes a socio-political dimension is particularly appropriate. By placing the emphasis on human dignity, respect, and the right to equality rather than a simple biomedical condition, this approach recognizes that the attitudes of society and its members often contribute to the idea or perception of a “handicap”. [Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City), 2000 SCC 27,  1 S.C.R. 665, para. 77]
That is, definitions of disability must recognize the complexity that results from the interaction of an individual with his or her environment. For example, the particular context – such as employment or housing – will matter, as well as the way in which stereotyping affects the perception of an impairment. Definitions must relate to particular contexts and purposes, and a definition that is of assistance in considering one aspect of the experience of disability may not be illuminating in another.
In its work to date, the LCO has taken a broad approach to the definition of disability, including both the experience of socially constructed barriers and the embodied aspects of the experience of disability. In developing its Framework, the LCO will consider the experiences of persons with permanent disabilities, intermittent and temporary ones, disabilities that are present at birth and those that develop late in life, and disabilities that manifest in physical, sensory, mental, development or learning impairments and perceived disabilities, as well as the experience of multiple disabilities. We will be guided by what we hear from persons with disabilities themselves regarding their experiences with the law.
Considering the needs and experiences of persons with disabilities: As an example, persons with disabilities may face extra difficulties beyond those faced by the general population in finding information about their legal rights and responsibilities, because public information and education strategies may not take the needs and circumstances of persons with disabilities into account. At the simplest level, information may not be provided in disability-accessible formats. Common examples of this are the use of pdf files, which are inaccessible to many screenreaders, and the failure to provide American Sign Language interpretation for those who are culturally Deaf.
I had to take a landlord through the tenants’ rights acts and through their independent tribunal, which is a quasi-legal action which didn’t make a lot of sense, but the starting point was access to the forms-access to the forms that every sighted person can pick up. I can’t pick them up and read them, I need assistance. If those forms are available online, again, is it online, the screen reading program the blind and the seeing-impaired people use to access that information. Access can take many forms, but for me as the visually impaired person, the print is a problem again. For those of us that have literacy problems, again, they can see the print, it doesn’t make sense, are the words jumbled up when they read it, is there an easier way, or is there an aid or assistant that can perhaps assist with the paper work involved in taking an action. These sorts of facts are things that I think are important for everybody.
LCO Focus Group, Owen Sound, May 31, 2010
Individuals with Disabilities
Communication strategies may also fail to take into account that lower income levels among persons with disabilities may reduce access to technology and thereby to information provided only via the internet, and that barriers in education may leave persons with disabilities with lower literacy levels and therefore greater difficulties dealing with complex print-only information. During the consultations, many persons with disabilities emphasized that the people who most need information are likely to be those who are in crisis, and therefore less able to jump through hoops to find information. For example, persons who have mental health disabilities may be unable to advocate for themselves within the employment, housing, mental health or criminal justice systems just when they most need assistance.
There are people who have the ability to go after these things and research them; then, there’s the issue of understanding it and how to implement it. I don’t understand why there isn’t advocacy available in the community […] to help people in these processes and how to bring their rights challenges forward. That’s a huge issue.
LCO Focus Group, Toronto, May 13, 2010
Taking institutional and systemic barriers into account: As well, even where the needs of persons with disabilities are taken into account the focus is often mainly on the impairment, rather than on the full experience of persons with disabilities in their social context. Persons with disabilities face a multitude of institutional or systemic barriers. For example, a shortage of supportive housing options, paired with sometimes Kafka-esque application protocols, means that finding an acceptable place to live can be difficult and sometimes impossible. Endemic shortages of adequately skilled sign-language interpreters create barriers for Deaf individuals in every area of life, from accessing education, to pursuing their legal rights in court, to obtaining health care or basic services, so that even the simplest activity becomes a monumental endeavour. Cumbersome processes for accessing accommodations and supports in public education, together with complex power dynamics create challenges for parents attempting to navigate these systems.