III. Identifying Principles for the Law as it Affects Persons with Disabilities

///III. Identifying Principles for the Law as it Affects Persons with Disabilities
III. Identifying Principles for the Law as it Affects Persons with Disabilities2017-03-03T18:35:38+00:00
There has been considerable work done over the past forty years to formulate the principles upon which any approach to the rights of persons with disabilities should be based. While there are areas of debate and divergence regarding these principles, there is considerable agreement in many areas, and the difficulty lies not so much in identifying the principles that should underlie the law as it relates to persons with disabilities, as in clarifying their application and implementation.

A. Sources of Principles

1. The Charter and the Human Rights Code

The rights of persons with disabilities are protected in Canada under the Canadian Charter of Rights and Freedoms and under the various provincial human rights statutes. In Ontario, the applicable statute is the Human Rights Code.

Section 15 of the Charter provides for equality before and under the law, and for equal protection of the law without discrimination on the basis of a number of enumerated grounds, including mental or physical disability. Section 15(2) of the Charter shields laws, programs and activities that aim to ameliorate the conditions of disadvantaged groups or individuals, including those with physical or mental disabilities.

The Ontario Human Rights Code prohibits discrimination on the basis of disability in the provision of services, goods and facilities; employment; housing accommodation; contracts; and membership in professional associations and unions. The Preamble of the Code roots its provisions in the recognition of the inherent dignity, worth and equal rights of all; the creation of a climate of mutual respect and understanding; and the ability of all to contribute and to participate in the community.[6]

The disability-related caselaw arising under the Charter and human rights laws is rich and complex. Fundamental principles emerging from that caselaw include:

  • An equality analysis that focuses on recognition of the inherent dignity and worth of persons with disabilities.[7]
  • The recognition that laws and policies may reflect stigmas and negative assumptions related to particular disabilities.[8]
  • The recognition that barriers in attitudes and the environment are a key component in the experience of disability, so that the focus of a disability rights analysis must be on dignity, respect and the right to equality rather than solely on biomedical impairments.[9]
  • The necessity of broadening the “mainstream” structures of society to include and respect the differences associated with disability.[10]
  • An emphasis on the right of persons with disabilities to receive equal benefit of services, by design and from the outset, even where special measures are required to ensure this is the case.[11] Equal access includes consideration of the independence, comfort, dignity, safety and security of persons with disabilities.[12]
  • The right of persons with disabilities to be assessed and accommodated based on their own personal characteristics, rather than assumptions related to their disability.[13]

    In discussing principles for the law as it affects persons with disabilities, it is helpful to consider the Ontario Human Rights Commission’s Policy and Guidelines on Disability and the Duty to Accommodate, which outlines three principles for consideration in providing equal treatment without discrimination for persons with disabilities:[14]

  • Respect for dignity: this includes individual self-respect and self-worth, as well as privacy, confidentiality, comfort, autonomy, individuality and self-esteem.
  • Inclusion and participation: this includes ensuring that persons with disabilities are able to access their environment and face the same duties and requirements as everyone else, with dignity and without impediment, and involves inclusive design and the removal of barriers.
  • Individualization: each person with a disability must be considered, assessed and accommodated individually, as each person is unique.

    2. Policy Documents

    Canadian governments have developed a number of policy documents related to disability.[15] Most importantly in terms of developing a set of guiding principles for law and policy, in 1998 the federal, provincial and territorial ministers responsible for social development released In Unison: A Canadian Approach to Disability Issues, describing their vision and long-term policy directions for promoting the full inclusion of persons with disabilities in Canadian society. In Unison identified a vision for persons with disabilities in Canada:

    Persons with disabilities participate as full citizens in all aspects of Canadian society. The full participation of persons with disabilities requires the commitment of all segments of society. The realization of the vision will allow persons with disabilities to maximize their independence and enhance their well-being through access to required supports and the elimination of barriers that prevent their full participation.[16]

    This vision is based on the values of equality, inclusion and independence.

    3. The United Nations’ Convention on the Rights of Persons with Disabilities

    The Convention on the Rights of Persons with Disabilities is the response of the international community to the ongoing marginalization and disadvantage of persons with disabilities. It was negotiated over a period of three years, with the participation of civil society, Governments, national human rights institutions and international organizations. The aim of the Convention is to protect the fundamental human rights of persons with disabilities and to promote their ability to participate in the opportunities offered to persons without disabilities.

    The Convention details the rights that all persons with disabilities enjoy and outlines the obligations of States Parties to protect those rights. These specific rights include, among others, the right to life, liberty and security of the person; equal recognition before the law and legal capacity; freedom from exploitation, violence and abuse; respect for mental and physical integrity; to live in the community; to privacy; to expression of opinion; to education, health and work; to an adequate standard of living; and to participate in political, public and cultural life.

    The Convention also sets out a number of general principles:

  • Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
  • Non-discrimination;
  • Full and effective participation and inclusion in society;
  • Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
  • Equality of opportunity;
    Accessibility;

  • Equality between men and women;
  • Respect for the evolving capacities of children with disabilities and respect for the right of children with disabilities to preserve their identities.

    C. Initial Principles for the Project

    Based on the above, the LCO has adopted the following six principles for this project, on a preliminary basis:

  • Respect for the dignity and worth of persons with disabilities,
  • Autonomy and independence,
  • Inclusion and participation, and accommodation,
  • Equality and non-discrimination,
  • Recognition that humans vary infinitely along a spectrum of abilities and that society must accommodate these variances into its mainstream, and
  • Respect for the diversity among persons with disabilities and in the experience of particular disabilities.

    The meaning and application of these principles will be developed through the course of this Project. This includes consideration of approaches to situations where principles are in tension with each other, as well as consideration of how each of the principles support and enrich the others.

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