A. Conceptual Approaches and Definitions

As noted above, in the late spring of 2009, the LCO released a Preliminary Consultation Paper on Approaches to Defining Disability. The Paper discussed, at some length, the various conceptual approaches to disability and their relationship to the current framework of disability law in Ontario, and raised a number of questions related to the approach to defining disability in the context of the law.

The LCO is grateful to all those who provided comments and submissions on this Paper. The issues raised are complex, and will be explored throughout this Project. However, as a starting point, it is clear that conceptions of disability are complex, contested and evolving. The Human Rights Tribunal of Ontario pointed out the challenges inherent where statutes embody divergent approaches to disability, and a statute that has barrier removal as its core mandate (the Human Rights Code) is used to challenge statutes, such as the Building Code, the Ontario Disability Support Program Act or the Education Act, that take a narrower approach to the concept of disability.[1]

No one approach or definition can fully capture all facets of the experience of disability, or appropriately address all circumstances where notions of disability are in play. It was suggested to the LCO that, rather than focusing on the appropriate model of disability, applying principles could be far more useful than any particular model of disability in actually formulating the law.[2] The LCO will make use of a variety of approaches or models of disability in understanding the impact of the law on persons with disabilities, and will consider how various models and definitions of disabilities may serve particular policy goals for the law, as those policy goals are formulated through identified principles.

ARCH notes that definitions of disability often stem from a paternalistic view of persons with disabilities, that distinguishes them as different from the “norm” and therefore in some way defective. ARCH emphasized the importance of having persons with disabilities themselves shape definitions of disability:

One step in achieving greater equality for persons with disabilities is to ensure that definitions of disability are formulated by them. Once persons with disabilities are able to influence or control the definitions and meanings attached to disability, it will be possible to challenge many of the old assumptions that continue to influence legislation and law reform. The key is to create a framework that people with disabilities feel represents their own lived experience, the meaning of disability in their own lives, and the impact of disability upon their lives, rather than having definitions thrust upon them.[3]

B. Diversity in the Experience of Disability

While persons with disabilities may have common experiences of exclusion or marginalization, the disability community is far from being a homogenous group.

To begin with, the experiences of individuals will differ widely depending on whether their disability is physical, sensory, psychiatric, learning, intellectual, or other. As was noted in the Government of Canada Report, Advancing the Inclusion of Persons with Disabilities, “All people with disabilities have common experiences of exclusion, but each type of disability may give rise to unique needs.”[4] Needs are affected by the degree of disablement as well as the type. Experiences are also affected by social attitudes and barriers affecting the various types of disabilities. For example, persons with psychiatric, intellectual or developmental disabilities face particularly heavy stigma.[5] Others may, for example, face barriers in transportation or educational systems that make participation in society very difficult, despite relatively mild levels of impairment.

The same level of impairment may give rise to quite different experiences depending on when it is experienced, and the surrounding social environment. The experience of a person who was born with a hearing impairment, who is culturally Deaf, and who uses Sign Language as a first language will be quite different from a person who has acquired a similar level of hearing impairment at an advanced age, who does not know Sign Language, and is not part of a deaf community.

As well, there has been considerable scholarship about how the experiences of disability may differ based on gender, racialization, sexual orientation, or other aspects of a person’s identity. Women with disabilities, for example, have special concerns regarding reproduction and parenting. Aboriginal persons with disabilities may have difficulty finding accessible support services that are sensitive to their culture and history. A man who is Black, as well has having a disability will have compounded difficulties in seeking employment, as he will face a double set of barriers, based both on his colour and his disability.

The impact of a disability may also differ depending on whether an individual is living in an urban area where access to supports and services may be greater, or in a remote or rural area; whether the individual has a supportive surrounding family and community; his or her socio-economic status; and other factors.

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