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