Based on the approaches identified in Chapter I and the contexts and themes outlined in Chapter II, this Chapter will identify and define principles which can form the basis for an evaluative framework for the law as it affects persons with disabilities, as well as some considerations for applying these principles. As was highlighted in the previous chapter, “law” includes not only statutes and regulations, but the policies and practices that are employed to implement them, and so should be understood broadly.
A. Adopting a Principles-Based Approach
As was noted in Chapter I, the LCO determined at an early stage in this project to base its Framework on a set of principles.[192]
Principles are normative, and can act as a catalyst to change attitudes and awareness about persons with disabilities. They are also by their nature aspirational, and can help us to identify the goals which law and policy should seek to achieve with respect to persons with disabilities. A principles-based approach can assist in ensuring that the goals of the law are in harmony with the aspirations of persons with disabilities, while recognizing that those aspirations (and the law itself) are constantly evolving.
As discussed in the previous Chapter, the law as it affects persons with disabilities is vast, diverse and sometimes contradictory.[193] There are dozens of laws that directly target some or all persons with disabilities. Many of them, like special education and the Ontario Disabilities Support Program (ODSP), involve extensive and complicated webs of policies and processes and significant bureaucracies. And of course, by definition, all laws of general application affect persons with disabilities, sometimes differently or disproportionately compared with those who do not identify as having a disability. Not surprisingly, the law as it affects persons with disabilities is often fragmented and difficult to grasp, let alone navigate. A principles-based approach potentially provides a clear and consistent yet flexible means of assessing this wide range of laws.
As well, a principles-based approach builds on the extensive work that has been completed over the past few decades. Persons with disabilities, together with organizations that represent, serve or advocate for them, have worked to articulate principles that address their experiences and their aspirations, and to see them reflected in laws and public policy. The Canadian Charter of Rights and Freedoms (Charter) and the Ontario Human Rights Code (Code) (together with the caselaw developed under them), statutes such as the Accessibility for Ontarians with Disabilities Act (AODA), public policy documents such as In Unison and international documents such as the Convention on the Rights of Persons with Disabilities (CRPD) all reflect, to varying extents and according to their particular contexts, these fundamental principles. A principles-based approach therefore ensures that the work of the LCO builds on and complements all that has gone before, and can make a contribution to the ongoing evolution of this area. A brief outline of the key sources for the LCO’s principles can be found in Appendix B to this Final Report.
Because principles are abstract, a principles-based framework must meet the significant challenge of grounding these abstract principles in lived experience, and ensuring that their implications and interpretations are sufficiently concrete to permit practical application, a challenge that is discussed at greater length later in this Chapter, and explored in the context of particular laws in the Case Examples throughout this Final Report and the extended Case Example applying the Framework in Chapter V.
B. Substantive Equality As An Overarching Value
Equality is identified as a value or a principle in some of the documents discussed above. In particular, equality and non-discrimination are central to the Charter and to the Human Rights Code.
Rather than identifying equality as a discrete principle, the LCO has concluded that substantive equality is more appropriately described as “an underlying value” or a goal that observance of the principles will advance and that should influence the interpretation of the principles.
The interpretation of the concept of equality is subject to on-going debate and discussion and the case law relating to equality continues to evolve. Similarly, its meaning as a value underlying the principles will also evolve.
“Equality” is often linked with “non-discrimination” and in certain respects they are intended to achieve similar results. Anti-discrimination theory has become intertwined with the notion of equality, and as a result even the broader “equality” tends to carry with it the notion that particular groups (and not necessarily others) have been treated unequally and deserve to be treated equally. There is a major difference between the two, however. “Non-discrimination” requires a comparison with others who do not share distinctive characteristics with a person denied a benefit or opportunity, for example. There is an implicit assumption that the way the comparator group is treated or the opportunities available to the comparator group is the standard to meet. Both the claimant and the comparator group might be treated “badly”, but nonetheless equally and without discrimination, even though the way they are treated is at a low standard. Accordingly, governments required to extend benefits to a group previously excluded because the exclusion constitutes discrimination can decide not to provide the benefit rather than extend it.
The LCO’s approach to the concept of equality is substantive, rather than formal. The Supreme Court of Canada, in a recent case dealing with age-based criteria, stated,
Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether those characteristics are relevant considerations under the circumstances. The focus of the inquiry is on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. The result may be to reveal differential treatment as discriminatory because of prejudicial impact or negative stereotyping. Or it may reveal that differential treatment is required in order to ameliorate the actual situation of the claimant group.[194]
Substantive equality requires government and private actors to take the steps necessary to advance access by all citizens to benefits, supports, programs, goods and services in a way that is responsive to their particular needs. Its goal might also be thought of as full “citizenship” in society. It incorporates but is not limited to non-discrimination, meaning that no distinctions are imposed upon disadvantaged persons that, in purpose or effect, withhold or restrict access to opportunities, benefits or protection from the law, or impose burdens, obligations, or disadvantages that are not imposed on others. It also means, however, that persons with disabilities are not defined by the barriers they face, but are recognized as members of society who are able to make contributions and have obligations, as do other members. Substantive equality is about intangible concepts such as dignity and worth, but also about concrete opportunities to participate, have needs taken into account and have society and its structures and organizations develop in a way that does not treat persons with disabilities as outside mainstream society.
C. Principles For The Law As It Affects Persons With Disabilities
The LCO has identified six principles for the law as it affects persons with disabilities:
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Respecting the dignity and worth of persons with disabilities;
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Responding to diversity in human abilities and in other characteristics;
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Fostering autonomy and independence;
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Promoting social inclusion and participation;
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Facilitating the right to live in safety; and
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Recognizing that we all live in society.
The six principles are closely linked. They cannot be understood or successfully implemented in isolation. To a certain degree, the underlying concepts overlap. For clarity, they are outlined here separately, but the Framework applies them holistically, r