The previous section of this Paper provided a very brief overview of some key aspects of the relationship of persons with disabilities with the law. This broad understanding of the ways in which that law shapes, enables and constrains the lives of persons with disabilities provides a foundation for the LCO’s evaluative framework for the law as it affects persons with disabilities.
Based on the analysis set out in the previous section, the LCO has identified a set of principles which will form the foundation for the development of its Framework. These principles should assist law and policy makers in developing and reforming laws and policies in ways that will be just and effective for persons with disabilities.
B. The Purpose of Principles
The LCO’s Framework will be based on a set of principles for the law as it affects persons with disabilities. The principles will provide a basis for a series of questions that will assist law and policy-makers in developing and evaluating laws and policies that may affect persons with disabilities.
Identifying a set of principles to guide the law as it affects persons with disabilities can help to ensure that this area of the law is as a whole is consistent and coherent, that the goals of the law are in harmony with the aspirations of persons with disabilities themselves, and that the law is effective in its approach to the needs and experiences of persons with disabilities.
A principles-based approach to analyzing and evaluating the law has the benefit of articulating general standards, while remaining sufficiently flexible to apply to multiple contexts and evolving social norms. Principles can act as a catalyst to change attitudes about persons with disabilities.
However, in adopting a principles-based approach, there is a risk of developing an overly abstract approach to the complexity of the experiences of persons with disabilities. Principles must be rooted in the lived experiences of persons with disabilities, and in the realities of a complex and evolving legal context.
C. Sources for Principles
The primary source for identifying and understanding principles for the law as it affects persons with disabilities must be the lives and perspectives of persons with disabilities themselves. The LCO’s extensive Spring 2010 consultations with persons with disabilities and with organizations that serve, advocate for or represent persons with disabilities have significantly shaped the LCO’s approach, and some key results have been highlighted in the previous section.
As well, there has been significant effort over the past 40 years, both domestically and internationally, to identify foundational principles for policies and programs affecting persons with disabilities. Key sources include:
International Documents: The most important of these is the new Convention on the Rights of Persons with Disabilities (CRPD), but there are also many other instruments and documents, such as the Convention on the Rights of the Child, the Convention on Economic, Social and Cultural Rights and many others.
Domestic Legal Frameworks: The Charter of Rights and Freedoms has been an important source of rights and principles for persons with disabilities, particularly through the equality rights analysis developed under section 15. As well, the Ontario Human Rights Code and its accompanying policies, and the Accessibility for Ontarians with Disabilities Act (AODA) articulate principles of inclusion, participation and dignity for persons with disabilities.
Domestic Policy Frameworks: Canadian governments have developed a number of policy documents related to disability, the most important of them for our purposes being In Unison: A Canadian Approach to Disability Issues, which set out a blueprint for promoting the integration of persons with disabilities in Canada, articulated a vision of full citizenship for persons with disabilities, and aimed to create a coordinated approach to delivering services and benefits to persons with disabilities.
D. The Principles
Based on the above, the LCO has identified six principles to guide the law as it affects persons with disabilities.
Underlying all six principles is a fundamental value of substantive equality. That is, the ultimate goal of the six principles is to advance substantive equality for persons with disabilities, and this value should influence how all of the principles are interpreted.
Equality, while it includes non-discrimination, is a broader concept, and not limited to a comparative approach. Substantive equality can be interpreted to create a standard that recognizes, permits or encourages as full participation as is possible. It may require different treatment of some individuals or groups in order to achieve that standard; the test is not how someone else is treated, but how close to that standard any given person’s or group’s treatment is. Many of the stories that the LCO heard during its consultations were about the lack of substantive equality for persons with disabilities. The social and economic marginalization of persons with disabilities, negative attitudes and stereotypes, and persistent institutional and systemic barriers illustrate some of the sources of inequality, and why finding ways to address them are essential to the realization of substantive equality and the enjoyment of full “citizenship” for persons with disabilities in Canadian society.
The six principles are closely linked, and must be understood in relationship to each other. They cannot be achieved in isolation from each other, although it is also true that in some situations the principles may be in tension with each other.
1. Respecting the Dignity and Worth of Persons with Disabilities
To get funding, you have to strip yourself of any itty-bitty inkling of dignity that you have, um, you know … to… you need to sort-of strip yourself of all the dignity that you have and open your private spaces up absolutely, completely, risking legal ramifications even – I wonder, I wonder if that information could be used when there are issues of aggression and violence and abuse and all that kind of stuff, if that kind of information you end up documenting to get the support you need to save yourself from yourself, to gain your dignity and independence, may actually be used against you at some point.
LCO Focus Group, Toronto, May 11, 2010
During the LCO’s Consultations, persons with disabilities shared many stories of being treated with disregard and disrespect, of being stereotyped and dismissed, and of assumptions that because of their disabilities they were of lesser worth or had less ability to feel, learn and contribute than others.
The principle of dignity has been recognized in Articles 1 and 3(a) of the CRPD, in the preamble of the Code, and in Supreme Court of Canada jurisprudence in relation not only to section 15 of the Charter,  but as underlying the Charter more generally.
In Law v. Canada (Minister of Employment and Immigration), the Court says that human dignity “means that an individual or group feels self-respect and self-worth. It is concerned with physical and psychological integrity and empowerment”. The Court also emphasizes that stereotyping and political and social prejudice can have a negative impact on a person’s dignity. The Court has also found the principle of dignity central to the provision of services to persons with disabilities and to the duty to accommodate in the context of employment.
Living up to the principle of respecting the dignity and worth of persons with disabilities is a direct challenge to “ableism”, the tendency to link expectations to disabilities, instead of to the whole person.
The principle of respect for the dignity and worth of persons with disabilities recognizes the inherent, equal and inalienable worth of every individual, including every person with a disability. All members of the human family are full persons with capacity for growth and expression, with the right to be valued, respected and considered and to have both one’s contributions and needs recognized.
2. Responding to Diversity in Human Abilities and in Other Characteristics
If a person is not able to express themselves and be forthcoming it is very easy to be not validated or talked over and not everybody has the ability to express themselves or a sense of self-esteem so many, many times something will be said about a person or be done and they are not able to speak up for themselves “Oh that is a head injury person with a drinking problem.” Or a person with physical disabilities with something like the flu and staff will sometimes look at the disability and factor that into the way the person is diagnosed and treated. It is rehumanizing the system and it does take more time, if a person will take more time with a person you get a better result for the future but it takes a lot of time to make that initial connection.
LCO Focus Group, Thunder Bay, June 17, 2010
I sat as Chief for my community for about two years. There was no service for persons with disabilities …When people need services, we ship them out to Thunder Bay and the urbanization provides a huge challenge. There are language barriers, plus if they lived off the land most of their life the very structure of urban community will shock them…[Aboriginal] people moving into the city are used to a certain food source. They are not used to this fancy food. They eat fish, waterfowl, moose, deer, berries from the land. And when they ask for this traditional food in old folks homes or hospitals, they are made fun of. One old person said a nurse said that this was food for cave people. The staff discouraged use of traditional food, instead of supporting it.
LCO Focus Group, Thunder Bay, June 16, 2010, Thunder Bay
Organizations serving Aboriginal Persons
There is a tendency to think of “disability” as an exceptional and homogenous experience. This obscures the variety of individual experiences and needs among persons with disabilities. This is especially true when individual experiences are considered across the lifespan.
The CRPD identifies respect for diversity and difference as one of the general principles that guide the human rights approach to disability rights. The Code provides another source for this principle through its implicit recognition of the importance of the “worth of each person” and requirement to accommodate without undue hardship. A final source for this principle can be found in Supreme Court of Canada jurisprudence, in particular with respect to s.15 of the Charter and the duty to accommodate in education and employment.
Ability and disability as a continuum: All humans vary in their abilities. “Disability” may be thought of as part of this normal variance. Social and environmental barriers may, at some points along this continuum of abilities, create disabling experiences for some individuals. Certain impairments may not constitute a disability in the sense that they affect a person’s daily life; the most obvious example is eyesight: many people who have poor eyesight are able to wear glasses that sufficiently compensate to enable them to function in most aspects of their life as if their eyesight were not impaired. Without corrective lenses, however, their eyesight might, in fact, constitute a disability.
This acknowledgement of the near universality of impairment highlights the way in which the line between disability and non-disability is socially and politically constructed. The principle of diversity therefore demands a widening of the range of what is considered “normal” in the context of human abilities, with the result being that more flexibility and adaptation is required in social, political and physical structures. To put this principle into action, universal or inclusive design, with a concomitant commitment to accessibility, is a key strategy to ensure the maximum inclusion of all people with their infinitely varying abilities. The CRPD imposes as a general obligation the promotion of universal design in standards and guidelines.
Inclusive design has been considered as part of the duty to accommodate. Appropriate accommodations are required to ensure full recognition of the spectrum of variance in human abilities. As the Ontario Human Rights Commission (OHRC) has emphasized, “[a]ccommodation with dignity is part of a broader principle, namely, that our society should be structured and designed for inclusiveness”.
Diversity in the experience of disability: This principle also reminds us that “disability” may be manifested in many ways. People with one form of disability have needs that persons with a different form do not; thus a person with a visual impairment has different needs to address the impairment than does someone with a mobility restriction or someone with an intellectual or developmental disability. It also recognizes that people who may be currently described as “able-bodied” may develop disabilities; for example, as people age their eyesight or capacity to walk may become sufficiently impaired to constitute a disability or an individual may have an accident that causes paraplegia.
Intersecting identities: As well, people are different from each other because of their sex, cultural community, age, sexual orientation or other characteristic. Needs also differ on the basis of factors such as whether people live in rural or urban areas or live with their families or in a congregate setting or on their own. In Unison 2000 highlights this aspect of diversity:
The framework [developed In Unison] also acknowledges the importance of developing flexible policy solutions in order to meet individual needs. Each person with a disability is unique and their specific needs, aspirations and challenges are influenced by their type of disability, stage of life, family, community and cultural context, and other characteristics. Aboriginal persons with disabilities, for example, view disability issues within frameworks that reflect their own cultural principles.
The principles of responding to diversity in human abilities and in other characteristics requires recognition of and responsiveness to the reality that all people exist along a continuum of abilities, that abilities will vary along the life-course, and that each person with a disability is unique in needs, circumstances and identities, as well as to the multiple and intersecting identities of persons with disabilities that may act to increase discrimination and disadvantage.
3. Fostering Autonomy and Independence
I cringe when I hear people say, ‘I have to go through my social worker’. I cringe because I am … independent. I want to think what my life is, not being judged or determined by a decision by another human being. It should be my decision.
LCO Focus Group, Thunder Bay, June 17, 2010
Individuals with Disabilities
The importance of fostering autonomy and independence has been explicitly recognized in several sections of the CRPD. Although not explicitly mentioned in the Charter, the Supreme Court of Canada has linked the principle of autonomy and independence to the right to equality in s.15 and to life, liberty and security of the person in s.7.
Decision-making: “Autonomy” is often understood as the ‘right to choose’, and expressed as a response to the persistent paternalism of legal and policy responses to persons with disabilities. According to the World Health Organization (WHO), autonomy is “[t]he perceived ability to control, cope with and make personal decisions about how one lives on a daily basis, according to one’s own rules and preferences.” In the context of s.7, the Supreme Court of Canada has articulated the principle of autonomy as including “decisions of fundamental personal importance” particularly with respect to bodily integrity. Disability Rights Promotion International (DRPI) defines autonomy as
the right of an individual to make his or her own choices. Autonomy, or self-determination, means that the person is placed at the centre of all decisions affecting him or her and may choose forms of supported decision-making.
While the recognition of autonomy has long been considered central to advancing the rights of persons with disabilities, in some cases limiting the choices of or enabling others to make choices on behalf of persons with disabilities has been seen as justified in order to achieve other ends, including the safety and security of persons with disabilities or of others in society. Some examples include consent and capacity laws and laws relating to involuntary treatment. Also, some laws are put in place in recognition of the particular vulnerability that persons with disabilities might experience because they lack appropriate supports. Although some limitation may be justified consistent with other principles, it is crucial that the focus remain on respecting the autonomy of persons with disabilities as much as possible and that limitations not be motivated by paternalism.
Recognizing the role of relationships in achieving autonomy: In addition to placing people at the centre of decision-making, it may be useful to recognize the relational aspects of autonomy. Jennifer Nedelsky argues that it is relatedness which enables people to gain autonomy; the relationships between “parents, teachers, friends, loved ones” are what “provide the support and guidance necessary for the development and experience of autonomy”. This approach focuses on “structuring relationships so that they foster autonomy.” Relational autonomy recognizes that none of us makes decisions on our own but we do so in consultation with others, and that the provision of support to persons with disabilities in the context of decision-making does not undermine autonomy.
Supporting independence: “Independence”, while linked to autonomy, is often conceived of as the ‘right to do for oneself’. The WHO defines independence as “[t]he ability to perform an activity with no or little help from others, including having control over any assistance required rather than the physical capacity to do everything oneself.” In Via Rail, the Supreme Court of Canada considered the principle of independence central to the finding that Via Rail’s failure to accommodate users of personal wheelchairs infringed the rights of persons with mobility disabilities to exercise their independence. In Unison 2000 stresses that the promotion of independence or “citizenship” and other LCO principles is linked to the goal of improving disability-related supports:
Disability supports are tools for inclusion. They are critical if people with disabilities are going to lead fulfilling lives and participate fully in their communities. Without them, many people with disabilities are not able to fulfill their social and economic potential.”
The principle of independence therefore requires that persons with disabilities are provided with appropriate levels of supports to do things for themselves to the greatest degree possible.
The principle of autonomy and independence applies to all areas of life for persons with disabilities and includes within its scope fundamentally personal decisions and provides strong support for enhanced disability-related and income supports for persons with disabilities. Further, both autonomy and independence inform the duty to accommodate as requiring accommodations that maximize the ability of persons with disabilities to choose and do for themselves.
The principles of fostering autonomy and independence requires the creation of conditions to ensure that persons with disabilities are able to make choices that affect their lives and to do as much for themselves as possible or desired, with appropriate and adequate supports as required.
4. Promoting Social Inclusion and Participation
My son’s opportunities of integration in summer disappeared because he was too old to go to programs … His world gets smaller and smaller as he gets older because he’s supposed to be a certain age, chronologically he’s that age, but developmentally he’s not. There’s no capacity for that: you can’t fit [it] on the form.
LCO Focus Group, Toronto, May 13, 2010
Persons with disabilities may find themselves excluded from the mainstream in a variety of ways. As the Ontario Court of Appeal noted in Eaton v. Brant County Board of Education, “The history of disabled persons, which the Charter sought to redress and prevent, is a history of exclusion”. As noted in the previous section, some of this arises from attitudinal barriers, and some from broader institutional and systemic barriers. As a result, persons with disabilities tend to find themselves pushed to the margins in a variety of social areas, including employment and education.
The principle of participation and inclusion aims to address this exclusion. The principle of inclusion and participation is mentioned in the CRPD in several contexts. The Code also recognizes the principle of inclusion and participation in its preamble. Several other Ontario legislative instruments also promote the principle of inclusion and participation. Most notably, the AODA attempts to apply the principle of inclusion and participation within a legislative framework. Finally, Supreme Court of Canada jurisprudence has also considered the principle of inclusion and participation in the context of persons with disabilities.
Participation and the right to be heard: Participation can include making decisions about daily life, accessing social and recreational programs, voting in public elections and other activities. Participation may also include the right to be a part of the community, to be consulted and to be heard with respect to decisions that affect the lives of persons with disabilities. As Frédéric Mégret describes, participation as it is used in the CRPD constitutes “a broader demand, made not only to the state but also to society, to allow persons with disabilities to fully become members of society and the various communities of which they are a part.” Each of these manifestations of participation may affect different subgroups differently. For example, persons with intellectual, cognitive or psychosocial disabilities may be restricted from participation in decisions affecting their daily living if found to lack legal capacity. Persons with mobility disabilities may find it difficult to access social and recreational programs or to vote if buildings are not physically accessible. Participation, therefore, can require different considerations for different people depending on their particular experience of disability.
Including persons with disabilities in the broader community: Inclusion may also mean different things for different subgroups within the disability community, as was evidenced by discussions at some of the LCO focus groups. Those who are culturally Deaf, for example, believe that inclusion means that respect and space is made for the continuity of that particular linguistic and cultural community. Other subgroups within the disability community, such as the intellectual and learning disabilities communities, may consider the principle of inclusion to encompass the integration of persons with disabilities into all aspects of mainstream society. These positions are not necessarily mutually exclusive; however, the means of achieving inclusion might differ for various subgroups of persons with disabilities based on their particular vision of inclusion.
The principles of fostering social inclusion and participation refers to designing society in a way that promotes the ability of all persons with disabilities to be actively involved with their community by removal of physical, social, attitudinal and systemic barriers to exercising the incidents of such citizenship and facilitating involvement as required.
5. Facilitating the Right to Live in Safety
I was at one time, about 10 years ago, put on a Form 1, which means that you can be danger to yourself or others. I wasn’t a danger to anybody else, so I was obviously a danger to myself. When the police came to arrest me, he ordered me to kneel down in front and put my hands behind my back, then he proceeded to cuff me, after he cuffed me, he went over to my eyes and sprayed me with pepper spray for about 3 seconds. With pepper spray, it’s like riding a bull, every second seems like an eternity. They want to play judge and jury and executioner in the field. I don’t know what stimulates them to abuse and take advantage of vulnerable disabled people, I don’t really understand where it comes from.
LCO Focus Group, Thunder Bay, June 16, 2010
This principle has its roots in the provisions of the CRPD that affirm the rights to liberty and security of the person; to freedom from torture or cruel, inhuman or degrading treatment; to freedom from exploitation, violence and abuse; as well as protections related to adequate standards of living and social protection and the attainment of the highest achievable standard of health. The CRPD more specifically identifies one particular concern about the abuse and exploitation of women and girls with disabilities. The right under section 7 of the Charter to security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice is also applicable. The principle affirming a right to live in safety requires consideration of the socio-economic barriers faced by persons with disabilities, as well as the higher than average rates of abuse and exploitation experienced by persons with disabilities, and the challenges faced by persons with disabilities who experience abuse and exploitation in seeking services and supports.
The history of the way in which the lives of persons with disabilities have often been curtailed as a result of both well-meaning and less well-meaning interventions by others make this principle contentious. There is a risk that a principle of entitlement to live in safety would be interpreted in a manner that would encourage paternalistic interventions in the lives of persons with disabilities. Nevertheless, it is crucial that law and policy be designed and private actions be conducted in a way that the security of persons with disabilities not be threatened. Protection against abuse of this principle can be found in the application of the other principles.
The principle of facilitating living in safety refers to the right of persons with disabilities to live without fear of abuse or exploitation and where appropriate to receive support in making decisions that could have an impact on safety.
6. Recognizing That We All Live in Society
…[O]ur society created us, now it’s our societies job to take care of what they created. We choose not to protect children, everyday, and when we choose not to protect them, then we have to be willing to embrace them with open arms when they become unmanageable adults, I’m not saying that everyone with mental health issues have been abused, but studies show that a great majority of us have been, and our society and the legal community, need to take some responsibility for this and say the buck stops here. You are a victim and you deserved to be treated like one, you are not the enemy, the enemy was the people who did this to you.
LCO Focus Group, Toronto, June 11, 2010
Individuals with Mental Health Disabilities
As the previous sections have made clear, like all of us persons with disabilities have multiple identities, ties, and communities; their experiences as persons with disabilities are only one part of that. To extend this point, persons with disabilities are members of the broader community, with which they have a wide range of ties, as well as reciprocal rights and obligations. The well-being of persons with disabilities – as citizens, as parents and family members, as workers and volunteers, as taxpayers and recipients of services – is closely connected to the wellbeing of the broader society. The reverse is, of course, true as well. Persons with disabilities, and the law as it affects them, cannot be considered as separate from this larger context.
The CRPD includes in its Preamble the realization that “the individual, having duties to other individuals and to the community to which he or she belongs, is under a responsibility to strive for the promotion and observance of the rights recognized in the International Bill of Human Rights”. In Unison defined citizenship as including “rights and responsibilities. It implies participation in and contribution to the systems and the ‘core’ services in which all Canadians can participate and to which most Canadians have access”.
A principle that recognizes the various communities to which persons with disabilities belong may strengthen the recognition of difference and diversity and add further dimensions to the right to participation and inclusion. It may also provide a helpful means of articulating and analyzing tensions that may arise between the rights of persons with disabilities and those of other members of the community.
This principle also recognizes that many demands on made on governments and private actors and it is not always possible to satisfy them. Many of these demands also relate to goals of inclusion in society, for example. This principle is not intended to subordinate the claims of persons with disabilities to the claims of others; rather, it is to recognize that the claims and entitlements of persons with disabilities sometimes affect others in society, just as the claims and entitlements of others affect persons with disabilities. In assessing these various claims, it will be important to refer to the other principles to ensure that the needs of persons with disabilities are not treated as lesser in importance than other claims and to see when they are of greater importance.
The principle of recognizing we all live in society acknowledges that persons with disabilities are members of society, with entitlements and responsibilities, and also acknowledges that other members of society also have entitlements and responsibilities.
E. Applying the Principles: Addressing Implementation Challenges
As principles are relatively abstract and aspirational, challenges may arise in their implementation. For example, resources are not unlimited, so that it may not be possible to fully implement all of the principles immediately. In some cases, the principles may point to different solutions for the same issue. The LCO suggests the following approaches to application of the principles.
Progressive Realization: Of course, even where one aspires to implement these principles to the fullest extent possible, there may be constraints in doing so, such as resource limitations or competing needs or policy priorities. In such circumstances, a progressive implementation approach to the principles should be undertaken, such that the principles are realized to the greatest extent possible at the current time, and concrete steps for future improvements are identified and planned for.
Inclusive Design: While in some cases it may be necessary or most appropriate to design specific laws, practices, programs or policies to meet the needs of persons with disabilities, in many cases an inclusive design approach that incorporates persons with disabilities into the overall design of the law will be the most effective approach. Everyone will benefit from a focus on dignity, autonomy, inclusion, security and diversity in the design of laws. Many, if not most of the measures required to fulfil the principles and to make the law more fair, accessible and just for persons with disabilities will also make the law more fair, accessible and just for others.
Protect, Respect, Fulfil: In the realm of international human rights law, the framework of “protect, respect, fulfil” is used to analyze and promote the implementation of human rights obligations. In this analysis, states must address their human rights obligations in three ways:
The obligation to respect – Governments must refrain from interfering with the enjoyment of rights. For example, governments must not exclude individuals from access to employment or education on the basis of their disabilities.
The obligation to protect – Governments must prevent violations of these rights by third parties. For example, States must require private employers to refrain from discriminating in employment because of disability.
The obligation to fulfil – Governments must take appropriate legislative, administrative, budgetary, judicial and other actions towards the full realization of these rights. For example, governments might create special programs to provide supports for persons with disabilities who face particular barriers to transitioning into employment following the end of their education.
Resolving Tensions Between Principles: In some areas of law or policy, there may be tensions between two or more of the principles. For example, the autonomy of persons with disabilities is often perceived to conflict with protection of their safety.
Consider Context: Consider the larger context in which the tension is perceived to arise. Often, the difficulty does not arise from irreducible tensions between two principles, but from a larger context in which limited resources, societal attitudes or institutional structures inhibit the simultaneous achievement of two principles.
Analyze the Tension: Where a true tension between principles exists, carefully examine the tension in a nuanced and holistic way. What specific rights or outcomes are at issue? Who might be affected? How might a reduced implementation of one principle affect the achievement of other principles?
Consider the Effect of the Other Principles on the Tension: Where two principles appear to be in tension, it is important to consider how the other principles may affect the dynamic, and how particular resolutions of the tension may impact on the realization of the other principles.
Maximize Implementation of the Principles: Consider whether solutions may be identified that permit expression of both principles, to at least some degree.
Promote Substantive Equality: Keep in mind that the purpose of the principles is to address the barriers to equality experienced by persons with disabilities. What solutions to tensions between principles are most likely to advance this larger goal?
TOWARDS A FRAMEWORK: YOUR FEEDBACK
Are the principles identified the appropriate principles on which to base an evaluative framework? Do they meaningfully capture the experiences and aspirations of persons with disabilities?
Do you have anything to add on the interpretation and definition of the any of the six principles as set out above?
How should a principles-based framework for the law as it affects persons with disabilities address tensions between the various principles that may arise in the implementation of the framework?
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