A. The LCO’s Project on the Law as It Affects Persons with Disabilities
This is the Final Report for the Law Commission of Ontario’s (LCO) project on the law as it affects persons with disabilities, concluding this multi-stage, multi-year project.
The experience of disability has a far reaching impact on the lives of Ontarians. According to 2006 Statistics Canada figures, over 15 per cent of Ontarians report living with an activity limitation, and the rate of disability is increasing. This means that almost everyone will be personally affected by disability at some point during their life, whether because they have or will develop a disability, or through the experiences of a loved one. This is a reality which profoundly shapes the ways in which individuals encounter the law, and to which law and policy-makers have, over the past forty years, increasingly attempted to respond. There have been considerable advances as law and policy have more frequently aimed to reflect and address the needs, circumstances and aspirations of persons with disabilities. Still, there is much to be done. The myriad of laws that affect persons with disabilities and aim to address disadvantage may be difficult to access and implement, and so may not have the intended effect. Persons with disabilities continue to disproportionately live in low-income, and to experience barriers to education, employment, housing, and personal safety and security. The combined effect of these barriers is, for many persons with disabilities, social and economic marginalization.
This project aims to contribute to the ongoing development and evolution of the law as it affects persons with disabilities. It received its original inspiration in part from a proposal from the then Executive Director of ARCH Disability Law Centre for the LCO to address issues relating to persons with intellectual and mental health disabilities, particularly personal autonomy and supportive decision-making, and dignity and citizenship in one’s own home. The LCO also received proposals related to other areas of disability law. Considering these proposals and the broader landscape surrounding the law and the experience of disability, in late 2007, the LCO’s Board of Governors approved a project to develop a holistic, coherent framework for the law as it affects persons with disabilities.
While many laudable legislative initiatives related to disability have been developed in recent years, there was a sense that the law in this area was complex, contradictory, fragmented and not necessarily achieving the goals set for it. Because laws tend to be developed in response to immediate or particular needs, the impact and interrelationship of a particular law with other laws and policies may not have been assessed against clear standards. The project was therefore not intended to focus on reform of any one specific issue; rather, its purpose was to develop a principled analytical framework that could be used as a tool for shaping new legislative and other initiatives that affect persons with disabilities or reforming current law and policies.
The project identifies a set of principles for the law as it affects persons with disabilities, sets out an evaluative framework for the law that is based on those principles, and applies that framework to the legislative regime governing attendant care for persons with disabilities.
Work on the project commenced in early 2009. This multi-stage project included the distribution of two consultation papers and an interim report, four stages of public consultation, and the funding of six external research papers, as well as considerable internal research, including research on a number of transition points in the lives of persons with disabilities.
The framework developed through this project will be of assistance to those who develop laws and policies, such as legislators and 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 reforms.
As is discussed at more length later in the next chapter, this project is closely related to the LCO’s similar project on the law as it affects older adults, the Final Report for which was released in July 2012. There is an under-examined relationship between aging, impairment and disability, so that the projects intersected in important ways. As well, given the similarities in the nature of the projects, there were many opportunities for the projects to inform and support each other. Therefore, while there are many areas where the two projects diverged, they were developed in tandem, and have strengthened each other.
B. The Primary Goal of the Project: Advancing Substantive Equality through Law for Persons with Disabilities
While the experiences of persons with disabilities vary widely, the experience of marginalization and discrimination based on disability is common. Negative attitudes and stereotypes, 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. These attitudes may manifest at the individual level. Importantly, they may also significantly shape structures, systems and institutions – including laws and legal institutions. These attitudes and stereotypes are often referred to as “ableism”.
Over the past several decades, 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.
This goal of achieving substantive equality for persons with disabilities has been articulated in many important legal and policy documents, including the United Nations Convention on the Rights of Persons with Disabilities, the Canadian Charter of Rights and Freedoms, the Ontario Human Rights Code and In Unison.
The achievement of substantive equality for persons with disabilities requires efforts from all sectors of society, and a multi-faceted approach. However, the LCO believes that this evaluative framework for law, policy and practice, based on the overarching value of substantive equality, makes a significant contribution to its realisation in the development of law, and is in harmony with the LCO’s mandate to address the relevance, effectiveness and accessibility of the law. Therefore, considerations related to ableism and substantive equality are central to the LCO’s development of a framework for the law as it affects persons with disabilities, and to this Final Report.
C. Developing the Project: The Process
1. Identifying and Shaping the Project
By its nature, this Project is very broad in scope. Given the wide range of Ontario laws and policies that affect persons with disabilities in areas as diverse as the legal system, employment, income support, transportation, the built environment, health law, caregiving supports, education and mental health, it was a significant task to comprehensively identify the current legal framework for persons with disabilities, the principles and assumptions that underlie it, and the way in which it has been operationalized, let alone develop a principled basis for reforming and developing this area of law.
The LCO therefore commenced this project with a two-part preliminary consultation. The aim of the preliminary consultation was to assist in defining the scope of the project, determining foundational approaches to the issues raised, and identifying preliminary or working principles.
The LCO conducted a series of in-person interviews with key organizational stakeholders, including advocacy and community organizations, legal professionals, and experts and academics. Concurrently, the LCO developed for public release a preliminary consultation paper. This Paper outlined some of the key conceptual approaches to disability, and how they have evolved over time. It examined definitions of and approaches to disability found in key international documents, influential Canadian policy frameworks and demographic research. It also provided a brief overview of Ontario legislation relating to disability and the types of approaches to disability used in these statutes and regulations. Lastly, it raised questions for consideration in adopting approaches to the law and disability.
In early 2010, the LCO formed an ad hoc Project Advisory Group, consisting of representatives of government, the legal profession, academics, and various advocacy and community organizations. The purpose of the Advisory Group was to provide the LCO with advice on public consultations and on the substance of the project. It met on a regular basis from early 2010 until the end of the project in mid-2012. The Advisory Group provided the LCO with advice and practical assistance with consultations, input on the structure and format of the Framework, and considerable substantive expertise towards the development of the Consultation Paper and the Interim and Final Reports. The LCO is very grateful for the work of the Project Advisory Group: this project could not have been successfully completed without it.
2. The Research Process
Given the size of this project, considerable research was required. Much of the foundational research was conducted internally, by LCO staff and by student researchers and pro bono students. In addition, three major research initiatives were undertaken as part of this project.
Osgoode Hall Law School Scholar in Residence: Professor Roxanne Mykitiuk of Osgoode Hall Law School, an expert in disability law, served as Scholar in Residence during winter 2009. Her research focused on identifying, analyzing and understanding sources for principles for the law as it affects persons with disabilities, including reviewing relevant caselaw, international documents and academic sources. This work significantly shaped the project and provided the groundwork for the identification for the principles. Following the completion of her time as Scholar in Residence, Professor Mykitiuk remained involved in the project as Special Advisor. She has generously given of her time and expertise by assisting the selection of Commissioned Research Papers, the development of the community consultation, and reviewing the LCO’s consultation paper and Framework.
Commissioned Research Papers: Based on the preliminary research and consultation, the LCO identified some principles and starting approaches to developing the Framework for the Law as It Affects Persons with Disabilities. In early 2010, the LCO issued a Call for Papers, the objective of which was to obtain expert input on the meaning and application of principles to such a framework, as well as to create critical debate about law reform and promote scholarly research in the area of the law as it affects persons with disabilities. The LCO funded two types of papers. Case Study Papers addressed a central issue related to the law as it affects persons with disabilities by considering how the preliminary principles might be applied in the context of the particular issues in the law as it affects persons with disabilities. Implementation Papers focussed on the practical challenges of implementing laws, policies and programs that both respect the principles and are effective. Six research papers were completed through this Call for Papers, which are listed in Appendix A to this Final Report. The Commissioned Research Papers contributed to the analysis throughout the Final Report, and in some cases form the basis for the extended examples in the Framework.
Transitions Research: A framework for the law as it affects persons with disabilities must be based on an understanding of patterns and issues in that law, something that may be difficult to achieve due to the extent and complexity of the law. There is a very extensive array of laws and policies, federal, provincial and municipal, specifically targeted to persons with disa