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 tha