While the experiences of persons with disabilities vary widely, the experience of marginalization and discrimination based on disability is common. Negative attitudes and stereotypes, manifested at both the individual and the systemic levels, as well as the tendency to overlook the very existence of persons with disabilities, create barriers for persons with disabilities across a broad spectrum of environments. This may be referred to as “ableism”. Significant efforts have been made to identify, understand and address ableism and its effects on the opportunities and experiences of persons with disabilities, with the goal of achieving a more just and equal status for persons with disabilities at all levels of society. The LCO believes that an evaluative framework for law, policy and practice that is based on an overarching value of substantive equality for persons with disabilities will make a significant contribution, and is in harmony with the Law Commission of Ontario’s (LCO) mandate to address the relevance, effectiveness and accessibility of the law.
The Framework developed through this project will be of assistance to those who develop laws and policies, such as legislators, policy-makers and private actors who develop policies and programs that affect persons with disabilities; to those who interpret laws, such as courts and tribunals; and to those who identify needs and advocate for reform.
The term “law” as it is used in this project refers not only to statutes, but also to regulations, to the policies through which they are applied, and to the strategies through which statutory provisions, regulations and policies are implemented and experienced by persons with disabilities. The aim of the project was to develop a principled analytical framework for this area of the law that would be used as a tool for evaluating legislative and policy initiatives that affect persons with disabilities, whether new initiatives or reforms of existing ones. The project identifies a set of principles for the law as it affects persons with disabilities as well as a set of considerations and contexts for the application of those principles, and sets out an evaluative framework for the law that is based on those principles and considerations. This resulting Final Report includes case examples as a way of illuminating the principles and considerations.
This project was approved by the LCO’s Board of Governors in late 2007.This was a multi-year, multi-stage project. It involved four stages of public consultation, including a very broad community consultation in 2010 that involved seventeen focus groups held across the province with groups representing a range of perspectives, experiences and contexts. It also involved extensive research, including both internal research by LCO staff and Osgoode Hall Scholar in Residence Roxanne Mykitiuk, and six commissioned research papers. The project was guided by an Advisory Group that included representatives from government, service providers, academics, lawyers, and community and advocacy organizations.
This project is closely related to the LCO’s sister project on the law as it affects older adults. The projects were similar in their aims and their methodologies, and each informed the other. As well, there is a complex relationship between impairment, disability and aging. It was important that the projects take into account both the similarities and the differences between the two groups, and resist the common tendency to conflate the two. Finally, the projects aimed to take into account those persons who fall within the scope of both projects, older persons with disabilities, whether they age into disability or age with a disability.
In developing the Framework for the Law as It Affects Persons with Disabilities, the LCO adopted the following starting points:
Understanding that access to justice requires looking beyond the clarity, efficiency and effectiveness of the law to consider normative issues;
Recognition of the broader social and environmental contexts of the experience of disability, and how they may affect the ways in which persons with disabilities encounter the law;
The importance of building on the considerable existing foundation for the law as it affects persons with disabilities, including international documents, domestic law and numerous domestic policy documents at both the federal and provincial levels;
The benefits of a framework based on a set of principles, which can provide guidance while remaining flexible and applicable in changing circumstances;
The centrality of the experiences and perspectives of persons with disabilities to the identification and application of the principles; and
The design of the framework as a strong foundation for further research, analysis and discussion.
II. The Law and Persons with Disabilities
The second chapter discusses the factors relevant to understanding the lives of persons with disabilities, providing an example of challenges facing young adults with disabilities as they transition to living independently. It also explains what we mean by “law” and its impact, using the example of Ontario Disability Support Program processes, and the major documents that affect the development of law or to which it must conform. Additional case studies in this chapter include the hiring of persons with disabilities to illustrate ableism and the law; accessible rental housing to show how laws interrelate with each other; access to information about the law for culturally Deaf individuals; and the monitoring and transparency of law in the case of individual education plans to assist in the transition from school to work.
Any framework for the law as it affects persons with disabilities must be based on a solid understanding of the context in which persons with disabilities encounter the law. This includes the demographic reality of disability and its effects on loved ones, including the lack of adequate supports; the diversity of the experience of disability and its relation with other aspects of identity; and the socio-economic consequences arising from education and literacy levels, employment, income security and other aspects of life and their impact on the life course of persons with disabilities.
Persons with disabilities are affected by laws of general application, such as consumer protection, family formation and dissolution, zoning, rental housing, access to information and protection of privacy and labour relations, some of which will affect persons with disabilities or some group of persons with disabilities differently from others. If a law of general application does not take into account the particular needs of persons with disabilities, they may be inadvertently disadvantaged through the law.
There are also a very significant number of laws that are specifically targeted to persons with disabilities or some group of persons with disabilities that aim to recognize and address particular circumstances connected to the experience of disability. Examples include the Ontario Disability Support Program, the special education provisions under the Education Act, laws related to decision-making capacity and guardianship, and many others. Some of these laws are implemented through lengthy policies and large bureaucracies; many have a profound effect on the opportunities and well-being of persons with disabilities.
The implementation of laws is as important as their substance: laws may be beneficial in intention and on paper, but in practice fall far short of their goals, or even have negative effects.
Through research and consultation, the LCO identified a number of key themes in the law as it affects persons with disabilities.
The “invisibility” of persons with disabilities in the law, both in the development of the law and in its content: Without participation by persons with disabilities in the development of laws, laws may not take into account the ways in which those with disabilities may be differently circumstanced, and so may disadvantage persons with disabilities or be ineffective in meeting their needs.
Negative attitudes, stigma and the law: These attitudes may be direct or subtle, manifested in individual interactions or in the content or implementation of laws, policies and practices. One example is paternalism, resulting in removing decisions from persons with disabilities “for their own good”.
Complexity, overlap and silos: The law as it affects persons with disabilities is frequently fragmented and enormously complicated, presenting challenges, both for persons with disabilities and for service providers and advocates who attempt to assist individuals in navigating systems. Well-intentioned laws may be effectively inaccessible for persons with disabilities who do not have the supports and resources necessary to understand and make use of them. Persons with disabilities may not be able to make meaningful choices because they are not aware of the options available to them, or perceive them to be too difficult to exercise.
Implementation and access to justice issues: Laws may be positive on paper, but may fall short of their goals in practice for several reasons, including barriers that persons with disabilities and other marginalized groups may face when attempting to obtain information about their rights and responsibilities under the law; failure to ensure that processes accommodate disability-related needs; reliance on self-advocacy to navigate complex systems; power imbalances between persons with disabilities and service providers; limited resources; and a lack of monitoring and accountability mechanisms.
III. Principles for the Law as It Affects Persons with Disabilities
Chapter III explains the benefits of a principles-based approach to developing and reviewing law, policy and programs and why substantive equality is an overarching value and not a specific principle. It discusses in detail the six principles that are the foundation of the Framework. Case examples in this chapter examine racialized individuals and the mental health system; sexuality and persons with disabilities; community treatment orders for persons with mental health disabilities; and Aboriginal older adults, access to community care and on-reserve communities.
The LCO’s Framework centres on a set of 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 also encourage the government to take positive steps to secure the well-being of persons with disabilities.
Each of the principles contributes to an overarching goal of promoting substantive equality for persons with disabilities. There is no hierarchy among the principles, and the principles must be understood in relationship with each other; they may reinforce each other or may be in tension with one another as they apply to concrete situations. The Report explains each of the following principles in detail:
Respecting the Dignity and Worth of Persons with Disabilities: 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: All people exist along a continuum of abilities in many areas, abilities vary along a person’s lifecourse and each person with a disability is unique in needs, circumstances and identities. Persons with disabilities also experience multiple and intersecting identities that may act to increase or diminish discrimination and disadvantage.
Fostering Autonomy and Independence: Persons with disabilities must be able to make choices about issues 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: Society should be structured to promote 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.
The application of the principles must be grounded in the lived experience of persons with disabilities, including attention to how the experiences of persons with disabilities are influenced by their life course, and on viewing persons with disabilities as whole persons rather than as sets of separate issues.
The circumstances of persons with disabilities will continue to change as laws, attitudes, demographics and other aspects of the broader environment change. As well, understandings of the experience of disability continue to evolve, and new perspectives emerge. What might be considered conducive to attainment of the principles at one time may appear unhelpful or inadequate at a later date.
Despite desires to implement all the principles to the fullest extent possible, there may be constraints that limit the ability of law and policy makers to do so, including policy priorities or funding limitations among others. Therefore it may be necessary to take a progressive realization approach to the full implementation of the principles. This involves concrete, deliberate and targeted steps, implemented within a relatively short period of time with a view to ultimately meeting the goal of full implementation. Such an approach mandates a continual, if gradual, movement forward towards the ultimate goal of substantive equality.
As well, attention must be paid to the relationships between principles. Frequently, the principles will support each other; for example, initiatives that increase the inclusion and participation of persons with disabilities will generally also thereby promote respect for their dignity and worth. However, sometimes two or more of the principles may be in tension with each other in a particular case. Careful thought must be given to analyzing and responding to this tension, by being sensitive to the contexts in which these tensions arise, as well as their larger social context, and the overarching value of substantive equality to which the principles were intended to respond.
IV. A Framework for the Law as It Affects Persons with Disabilities
Chapter IV is the Framework, which is also available as a freestanding document. It explains how to use the Framework, factors important to its application and an eight step process for applying it and thereby evaluating the law, using questions to guide the application. The chapter also includes examples of applying the principles at the first seven steps of evaluation.
Chapter IV builds on the principles and considerations identified in the preceding chapters to create the step-by-step framework for evaluating laws, policies and practices in their affect on persons with disabilities. For each step, the Framework provides context, examples and questions to help assess the law in light of the principles. These steps are as follows:
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?
V. Applying the Framework: The Law and Access to Attendant Services
This Chapter illustrates the application of the Framework through consideration of a current issue in the law as it affects persons with disabilities: the legal framework through which persons with disabilities receive supports in the community for needs related to activities of daily living. Such services are sometimes referred to as “attendant services”. The intent of the illustration is not to provide a comprehensive description of this area of the law or to propose specific reform initiatives, but to reflect on this area of the law in light of the principles and considerations identified in the Report.
Attendant services are essential for some persons with disabilities to maintain the ability to live in the community; without such services, the only option may be some form of institutionalized living. Therefore, access to these services can be essential to all aspects of participating in and being included by the community. Attendant services in Ontario are provided through a number of laws and programs, directed at various target groups and using different delivery models. While the purposes of the law are on the whole consistent with the principles, particularly the principle of inclusion and participation, there are a number of concerns with the implementation, so that the law, as a whole, does not appear to meet its potential for advancing substantive equality for persons with disabilities. Overall, there is a shortage of resources, leading to excessive waitlists and rationing of services. There are shortfalls in communication and information requirements, so that persons with disabilities may have difficulty in accessing information to make choices about available services. The complaint and enforcement mechanisms are confusing and there is a lack of recourse to an independent third party to resolve issues. Nor does the system have an effective means of identifying and addressing systemic issues.
VI. Next Steps
The LCO has disseminated the Report and Framework broadly to a wide range of interested organizations and individuals and intends to develop simplified materials related to the Framework.
The Report and Framework should not be considered, and were not intended to be, a final word on the matter, but rather, the foundation of further research, discussion and analysis.
The LCO itself is applying this Framework, as well as the results of the sister project on The Law as It Affects Older Adults, to a law reform project focussed on Ontario’s laws related to capacity and guardianship, that was begun in summer 2012.
This Chapter briefly sets out the recommendations of the LCO for the future use of the Framework by a range of public and private actors and its review and evaluation after a period of seven years.
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