A. Using the Framework
This Draft Framework is based on the legal foundations of the Charter of Rights and Freedoms, the Ontario Human Rights Code and international documents which have been ratified by Canada, such as the United Nations Convention on the Rights of Persons with Disabilities. It also draws on key policy documents such as the federal government’s In Unison: Advancing the Rights of Persons with Disabilities. As such, it has its roots in the legal obligations and policy commitments that bind government. It does not replace any of these documents, but is intended to build on these foundations and provide the basis for the further development of the law as it affects persons with disabilities. The LCO recognizes that this is an evolving area of the law, and this project is not intended as a final word on the subject, but as a contribution to ongoing research, analysis and debate.
The Framework is intended to guide the development and evaluation of laws, policies and practices to ensure that the realities of the circumstances and experiences of persons with disabilities are taken into account, and that laws, policies and practices promote positive outcomes for these members of society. It is composed of principles and factors to take into account in applying the principles, and uses a step-by-step approach. It has been developed for use by:
Policy-makers and legislators;
Advocacy organizations and community groups that work with persons with disabilities and/or deal with issues that affect them; and
Public or private actors that develop or administer policies or practices that may affect persons with disabilities.
Throughout the Framework, we have linked to other project documents which form the basis of or provide context for the Framework. The LCO Commissioned Research Papers are all available on the LCO website. The Background Papers will be released with the final version of the Framework.
This Framework is intended to be applicable across all laws and policies, including both those that are specifically targeted to persons with disabilities and those that will affect persons with disabilities as part of the general population. As it is general in this sense, some may find it helpful to adapt it to their own particular area of law or policy. It should be noted that, given the breadth and diversity of the law as it affects persons with disabilities, not all sections of the Framework will be relevant for every law, policy or practice.
It is not the purpose of this Framework to point to simple, definitive answers to all of the difficult issues that may arise in developing laws, policies and practices that may affect persons with disabilities. The law and the circumstances of persons with disabilities are complex and diverse. The nature of disability and our understanding of it are constantly evolving. Rather, the Framework is intended to ensure that law and policy-makers:
Consider and apply a consistent set of principles in developing laws, policies and practices that may affect persons with disabilities;
Ensure that potential barriers and sources of ableism in laws, policies and practices are identified and addressed; and
Take into account key aspects of the relationships of persons with disabilities with the law.
“The 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 and practices through which statutory provisions, regulations and policies are implemented. 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. Whenever the term “law” is used in this Framework, it is used in this broad sense.
“Disability”: No single definition of “disability” can fully capture experiences of persons with disabilities. 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 in which the term is raised – 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.
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. For the purposes of this Framework, the term “disability” includes persons with permanent disabilities, intermittent and temporary ones, disabilities that are present at birth and those that develop later in life, and disabilities that manifest in physical, sensory, mental, developmental or learning impairments and perceived disabilities, as well as the experience of multiple disabilities.
“Ableism”: Ableism may be defined as a belief system, analogous to racism, sexism or ageism, that sees persons with disabilities as being less worthy of respect and consideration, less able to contribute and participate, or of less inherent value than others. Ableism may be conscious or unconscious, and may be embedded in institutions, systems or the broader culture of a society. It can limit the opportunities of persons with disabilities and reduce their inclusion in the life of their communities.
“Diversity”: For the purposes of this Framework, diversity refers to a number of aspects of difference among individuals that may impact on the way that they encounter the law. This includes the broad range of differences in human abilities and characteristics, some of which are experienced as or defined as disabilities. It includes the wide range of identities that individuals may hold and that may intersect with the experience of disability, such as those related to sexual orientation, racialization, citizenship, Aboriginal identity, age, and many others. It also includes the range of barriers that individuals may encounter that may complicate the experience of disability, such as those related to geographic location or place of residence, caregiving responsibilities, low-income and many others. Finally, it recognizes that the experiences of each individual will be shaped by their life course, and that this may lead to differences that must be taken into account.
“Substantive Equality”: Substantive equality is often contrasted with “formal equality”. It goes beyond simple non-discrimination. It includes values of dignity and worth, the opportunity to participate, having one’s needs met, and the opportunity to live in a society whose structures and organizations include them. It recognizes and responds to societal patterns that result in different outcomes on the basis of irrelevant characteristics, as well as real differences that inappropriately disadvantage members of a particular group (such as women’s capacity for reproduction). Substantive equality may require differential treatment in order to fulfill these values.
For more extensive consideration of relevant terms, see the LCO’s “Preliminary Consultation Paper on the Law as it Affects Persons with Disabilities: Approaches to Defining Disability” (July 2009)
C. Principles for the Law as it Affects Persons with Disabilities
In order to counteract negative stereotypes and assumptions about persons with disabilities, reaffirm the status of persons with disabilities as equal members of society and bearers of both rights and responsibilities, and encourage government to take positive steps to secure the wellbeing of persons with disabilities, this Framework centres on a set of principles for the law as it affects persons with disabilities.
Each of the six principles contributes to an overarching goal of promoting substantive equality for persons with disabilities. The concept of equality is central to both the Charter of Rights and Freedoms and the Ontario Human Rights Code. The Supreme Court has recognized that governments may have a positive duty to promote the equality of disadvantaged groups. Observance of the principles ought to move law and policy in the direction of advancing substantive equality, and interpretation of the principles must be informed by the concept of substantive equality.
There is no hierarchy among the principles, and the principles must be understood in relationship with each other. Although identified separately, the principles may reinforce each other or may be in tension with one another as they apply to concrete situations.
Respecting the Dignity and Worth of Persons with Disabilities: This principle 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 the right to be valued, respected and considered and to have both one’s contributions and needs recognized.
Responding to Diversity in Human Abilities and Other Characteristics: This principle requires recognition of and responsiveness to the reality that all people exist along a continuum of abilities in many areas, 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 or diminish discrimination and disadvantage.
Fostering Autonomy and Independence: This principle 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 as they desire, with appropriate and adequate supports as required.
Promoting Social Inclusion and Participation: This principle refers to designing society in a way that promotes the ability of all persons with disabilities to be actively involved with their community by removing physical, social, attitudinal and systemic barriers to exercising the incidents of such citizenship and by facilitating their involvement.
Facilitating the Right to Live in Safety: This principle 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.
Recognizing That We All Live in Society: This principle acknowledges that persons with disabilities are members of society, with entitlements and responsibilities, and that other members of society also have entitlements and responsibilities.
For more information on the principles, see the LCO’s “Background Paper: Principles for a Framework for the Law as it Affects Persons with Disabilities” (released concurrently).
D. Implementing the Principles
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 factors to be taken into account in the application of the principles.
Taking the Circumstances of Persons with Disabilities into Account: While it is generally recognized that persons with disabilities make up a significant and growing proportion of Canada’s population, and that they may have needs, circumstances and experiences that differ from their non-disabled peers, laws and policies do not always systematically and appropriately take these into account. As a result, laws and policies may have unintended negative effects on persons with disabilities, may work at cross-purposes with each other, or may fail to achieve their intended goals. In some cases, stereotypes or negative assumptions about persons with disabilities may shape the degree to which or the way in which persons with disabilities are taken into account. In this way, the law may be ableist in its impact. As part of respecting and implementing the principles, the circumstances of persons with disabilities must be taken into account in the development and implementation of all laws, policies and programs that may affect them. This includes the recognition that persons with disabilities are themselves a highly diverse group, with widely varying perspectives, circumstances and experiences. The LCO’s Background Papers, which are companion pieces to this Framework, along with the resources linked to throughout the Framework, may provide assistance in understanding the circumstances of persons with disabilities.
Life Course Analysis: Following from the above, in applying the principles, it is important to consider the full life course of persons with disabilities. The life experiences of each of us will profoundly shape the resources and perspectives we bring to each stage of life. Barriers or opportunities experienced at one stage of life will have consequences that will reverberate throughout the course of life. The life course of an individual will shape the way in which that individual encounters a particular law; in return, laws will significantly shape the life course of individuals. That is, the impact of laws must be understood in the context of every stage of the life of persons with disabilities, from birth to death, and how these stages relate to each other.
Treating Law as Person-Centred Approaches: Law is often developed, implemented and analyzed as a set of separate and largely independent systems. A person-centred approach highlights the ways in which individuals encounter law – often as a confusing web of complex and fragmented systems – and requires that laws be developed and implemented in a way that respects the full experience of the individuals that will encounter them. This requires law to respond to individuals as whole persons with complex needs and identities, and to take into account the ways in which individuals transition through the life course or between systems.
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. Persons with and without disabilities will benefit from a focus on dignity, autonomy, inclusion, safety and diversity in the design of laws. Many of the measures required to fulfill 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. Designing laws, policies and programs to include persons with disabilities can make the law more effective overall.
Effective Implementation of Laws: Even where laws are based on a thorough and nuanced understanding of the circumstances of persons with disabilities and aim to promote positive principles, their implementation may fall far short of their goals. This is a common phenomenon. There are two aspects to this “implementation gap”: implementation strategies for the law, and mechanisms for ensuring that persons with disabilities are adequately able to access and enforce their rights. In developing and analyzing laws, as much attention must be paid to the implementation of laws as to their substance.
Progressive Realization: The fulfillment of the principles is an ongoing process, as circumstances, understandings and resources develop. Efforts to improve the law should be continually undertaken as understandings of the experiences of persons with disabilities evolve, or as resources or circumstances make progress possible. And 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. Therefore, 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 continually identified and planned.
Respect, Protect, Fulfill: In the realm of international human rights law, the concept of “respect, protect, fulfill” 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 – States parties must refrain from interfering with the enjoyment of rights.
The obligation to protect – States parties must prevent violations of these rights by third parties.
The obligation to fulfill– States parties must take appropriate legislative, administrative, budgetary, judicial and other actions towards the full realization of these rights.
This approach can be useful in analyzing and promoting the realization of the principles in the law as it affects persons with disabilities, or indeed any group. At minimum, governments must not violate the principles (i.e., they must respect and protect them), but complete fulfillment of the principles may be progressively realized as understandings and resources develop.
For more information, see the LCO’s “Background Paper, Principles for a Framework for the Law as it Affects Persons with Disabilities” (released concurrently).
EVALUATING OF THE LAW: A STEP-BY-STEP APPROACH
The Framework uses a step-by-step approach to evaluating a law against the principles. The process is broken down into eight steps. For each step, the Framework provides context, examples and questions to help assess the law in light of the principles.
Step 1: How Do the Principles Relate to the Context of the Law?
Step 2: Does the Legislative Development/Review Process Respect the Principles
Step 3: Does the Purpose of the Law Respect and Fulfill the Principles
Step 4: Who Does the Law Affect and How Does This Relate to the Principles?
Step 5: Do the Processes Under the Law Respect the Principles?
Step 6: Do the Complaint and Enforcement Mechanisms Respect the Principles?
Step 7: Do the Monitoring and Accountability Mechanisms Respect the Principles?
Step 8: Assessing the Results of the Evaluation: Is the Law True to the Principles?
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