Disability Report 2015 - Parliamentary Committee | On Palliative

PARLIAMENTARY COMMITTEE
ON PALLIATIVE AND COMPASSIONATE CARE
NOT TO BE FORGOTTEN
Re-Writing the Disability Chapter in Canada:
A Functional, Forward-Looking Approach
MARCH 2015
Joe Comartin, M.P. (Co-Chair)
Harold Albrecht, M.P. (Co-Chair)
Frank Valeriote, M.P. (Co-Chair)
Kelly Block, M.P.
Francis Scarpallegia, M.P.
This report was written and researched by Reem Zaia, J.D. Candidate 2015, Faculty
of Law, University of Ottawa under the direction of the PCPCC Co-Chairs.
The contents of this report do not represent the views or positions or official policies of
any Canadian political party, or formal federal or provincial Government entity. The report
does not constitute legal advice. The positions enclosed were approved by the Executive
Committee of the PCPCC, comprised of Members of Parliament across party lines.
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I. ABOUT THE COMMITTEE
The Parliamentary Committee on Palliative and Compassionate Care (PCPCC) is an ad-hoc, all-party group of
Members of Parliament dedicated to fostering meaningful dialogue in the area of medicine and mental health as it
applies to end-of-life care. It is a unique, non-partisan group that is fully funded by the Parliamentary budgets of
seven Members.
Established in 2010, its aims to promote awareness of deficiencies in Canada’s palliative care framework and foster
substantive research, writing and policy recommendations to address the nation’s approach to long-term health care.
The committee is open to any Parliamentarian with an interest in developing policy for aging Canadians. To date,
the committee has touched on:
1)
2)
3)
4)
Palliative, hospice and home care
Elder abuse
Suicide prevention
Disability issues
Members of the PCPCC have met with hundreds of Canadians and hosted numerous round tables across the
country with various stakeholders to discuss these issues. These consultations have provided the executive committee
with a better grasp for areas of improvement in Canadian law both with respect to palliative care and disability rights
through the testimonials of Canadians and their personal experiences.
Currently, the committee boasts some 55 members across political parties in the House of Commons. Its founders
include Joe Comartin (Windsor-Tecumseh), Harold Albrecht (Kitchener-Conestoga), Kelly Block (SaskatoonRosetown-Biggar), Michelle Simson (formerly the MP for Scarborough Southwest) and Frank Valeriote (Guelph).
In November 2011, the committee released “Not to be Forgotten: Care of Vulnerable Canadians”. Flanked by key
contributors in the medical community upon releasing the report, the PCCPC received support from the Canadian
Cancer Society, the Canadian Medical Association, the Canadian Association for Suicide Prevention, the Canadian
Network for Persons with Disabilities, and the Canadian Network for the Prevention of Elder Abuse, as well as
other organizations across Canada. The report addressed inadequacies associated with palliative and end of life care,
chronic pain, suicide prevention, elder abuse and long-term home care.
With this report, the committee trusts that Canadians will gain a stronger understanding of the state of disability
law in Canada, and that policy makers and organizations will assist in implementing the recommendations in order
to improve the structural framework that currently exists for persons with disabilities.
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II. ACKNOWLEDGEMENTS
Without a doubt, this report could not have materialized without the tireless efforts of George Dienisch. For over
five years, George’s contributions to the PCPCC as lead researcher have resulted in the unprecedented compilation
of hundreds of testimonials from Canadians on issues ranging from palliative care, suicide, elder abuse, and
disabilities. His continued dedication was an integral factor to the PCPCC’s first landmark report “Not to be
Forgotten: Care of Vulnerable Canadians” which was lauded by numerous organizations contributing to health
policy in Canada, including the Canadian Cancer Society.
Through George’s unwavering commitment, the PCPCC has forged links with Canada’s leading organizations. The
relationships that the PCPCC sustained with various stakeholders in the field have largely thrived due to George’s
consistent efforts to keep organizations apprised of the work that the committee has accomplished. The committee
would like to formally extend its gratitude to him for his positive spirit, the countless hours of research and writing
he has contributed, and the ideas that he brought to the discussion table – many of which have become areas of
dialogue at the national level. Without George, the much-revered work of the PCPCC simply would not have been
possible.
Importantly, the committee is particularly grateful to all of the professionals, care givers and individuals who testified
at roundtables and hearings across Canada. A comprehensive record of these individuals is listed in Appendix
A, which details the organizations represented by these individuals, their testimonial dates and the Members of
Parliament hosting the roundtables. These testimonials inform the rationale for the recommendations put forth
by the PCPCC. They played a pivotal role in directing the debate on policy reforms, and providing a backdrop of
information with respect to the private organizations delivering services for the disabled across Canada. Any names
that have not been catalogued are not deliberate omissions; rather, they are the product of administrative oversights
due to the breadth of information gathered.
The committee would also like to thank Professor Ravi Malhotra, an Associate Professor at the Faculty of Law of
the University of Ottawa. A graduate from Harvard, and a distinguished scholar in international human rights and
disability law, Professor Malhotra has dedicated his career to enhancing the calibre of academic literature while
contributing to the Human Rights Committee of the Council of Canadians with Disabilities and the Education
Committee of the Canadian Centre for Disability Studies. His suggestions in the area of disability law as they apply
to this report both internationally and domestically were insightful and integral to its completion.
The PCPCC extends its gratitude to all of the experts, professionals and academics alike, who shared their thoughts
on the state of the disability law regime in Canada. Many experts, such as international chairpersons, and directors
of organizations not only highlight areas of improvement which are noteworthy in discussions on reform, but
they also propose pragmatic solutions, and express how the social and legal infrastructure already in place can be
implemented more effectively. To all of those who shared their expertise with the committee, your contributions
were invaluable and assisted immensely in our deliberations both on this topic and the eventual formulation of the
recommendations.
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III. EXECUTIVE SUMMARY
The contents of this report elucidate the current state of the law on disability rights in Canada, and on the
international playing field, while proposing policy recommendations for reform. The policy and research data
presented is non-partisan in nature. Importantly, the report canvasses policies currently in place, and those that are
coming into force. It is the hope of the PCPCC that disability-rights organizations in Canada will countenance the
recommendations published.
This report is divided into the following chapter headings:
I: Changing Attitudes Towards Persons with Disabilities: Testimonials from Canadians
II: Expert Opinions on the Pitfalls in Current Disability Policies and Accompanying Testimonials
III: Canada’s International Obligations - United Nations Convention on the Rights of Persons with Disabilities
IV: New Zealand, Australia, United Kingdom and United States: A Focused Assessment on Disability Law Frameworks in
Similar Nations
V: Disability, Canadian Law and Jurisprudence: A Glimpse into the Current State of Affairs
VI: Violence, Abuse and Crime Against Persons with Disabilities
Chapter I provides a brief introductory sketch of the societal stigma associated with persons living with disabilities.
It features a concise discussion detailing various factors that exacerbate the difficulty of living with disabilities.
Chapter II synthesizes commentary from experts across Canada gathered by the PCPCC. Some of it speaks to
practical issues about social infrastructure provided within local community centres, while other approaches touch
on overarching concerns clouding equality within the economic and social domains. Testimonials gathered from
Canadians are included in Chapter II as evidence of the concerns that experts voiced.
Chapters III and IV provide a legal assessment of statutes and other legal regimes that affect persons with disabilities.
Chapter III assesses the place of international law in the discussion on persons with disabilities. Chapter IV provides
summaries of legal structures for the disabled in New Zealand, Australia, the United Kingdom and the United
States. It is meant to serve as a background discussion and a point of comparison from which the Canadian disability
rights framework can be critiqued.
Chapter V explains the matrix through which disability rights law is interpreted and implemented including but
not limited to the Canadian Human Rights Commission and the court systems, while providing a glimpse of case
law from Canadian courts shaping disability law. It also prescribes recommendations based on gaps in Canadian
law that can be filled in accordance with the United Nations Convention on the Rights of Persons with Disabilities.
Recommendations were drafted in light of the blueprints and financial services available in selected commonwealth
countries and the United States.
Finally, Chapter VI accounts for disabled people relegated to abuse and crime. Using statistical data and an
examination of the Criminal Code, it elaborates on some of the key issues that face both victims who are mentally
and physically disabled, as well as perpetrators of crime against individuals who struggle with a disability.
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IV. RECOMMENDATIONS
RECOMMENDATION 1
A)
That a nation-wide media campaign is devised in collaboration with the disability rights
community in order to promulgate continued dialogue on the state of disabled
persons in Canada and to further reduce societal stigma towards persons with disabilities.
An effective media campaign would require a range of communication mediums including but not limited to a
social media presence and other web materials. Collaborative partners may include disability rights organizations
with resources already invested in social media and web tools. Materials should also be provided directly to persons
with disabilities so as to ensure that services remain accessible. In order to ensure that services such as transportation
and health care are accessible, as required by Article 9 of the United Nations Convention on the Rights of Persons
with Disabilities (UNCRD), informative materials, such as leaflets, may be disseminated to persons with disabilities
through health care providers, by mail, law enforcement officials, etc. A unique emphasis should also be made on
disabled Aboriginal and First Nations persons and;
B)
That a national education program is launched for the purpose of educating law
enforcement personnel and medical professionals as to the state of crime against persons
with disabilities; and further to provide social context in terms of existing stigma/prejudice.
Such a program would identify proper detection, intervention and reporting of disability crime while attempting
to reduce stigma with individuals who deal with disabled persons on a day-to-day or frequent basis. It may be
executed in the form of workshops or seminars by an organization from the disability rights community working in
conjunction with police/medical colleges. An ideal national program should include a comprehensive curriculum,
which can be used for both officers in the training phase and those currently serving in the force, as well as medical
professionals.
RECOMMENDATION 2
That a national research office at a Canadian University is established and dedicated
specifically to the task of gathering, analyzing and synthesizing data pertinent to persons
with disability in Canada.
The appropriation of such research data is in accordance with Canada’s obligations pursuant to Article 31 of the
UNCRD, which requires state parties to “undertake to collect appropriate information, including statistical and
research data” in order to “assess state parties’ obligations under the present convention and to identify and address
the barriers faced by persons with disabilities in exercising their rights”. This research office holds the potential to
serve as a foundational resource and a “go-to” academic research laboratory for organizations and governments at
various levels across Canada.
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RECOMMENDATION 3
That a category delineating “persons with disabilities” is included within the definition of an
“identifiable group” against which hate propaganda is a criminalized offence.
Currently, section 318.1(4) of the Criminal Code, RSC 1985, c C-46 identifies colour, race, religion, ethnic origin
and sexual orientation as grounds under which hate propaganda may result in criminal sanctions. The definition
of an “identifiable group” is applicable to the public incitement of hatred in section 319(1) of the Code along with
the willful promotion of hatred in section 319(2). Amending this section to include persons with disabilities would
capture crimes including the willful promotion and public incitement of hatred against those with disabilities.
RECOMMENDATION 4
That the requirements of the Disability Child Tax Benefit (CDB) is redefined to include
financial support of children who use assistive hearing technology and have already learned to
use a spoken language.
Currently, only children with a “severe and prolonged impairment in physical or mental functions” can receive this
benefit. An impairment is considered prolonged “if it has lasted, or expected to last for a continuous period of 12
months”. Moreover, the disability must be so severe such that it takes 3 times the normal time required by an average
person who does not have the impairment to hear or speak.
RECOMMENDATION 5
That a Federal Disability Act is legislated by Parliament with regard for concurring
jurisdictional areas between the provinces and the federal government, specifically
in the area of pensions.
An act of this nature would serve not to undermine, but rather enhance current regimes in place for the rights
of persons with disabilities in human rights legislation both federally and provincially. It should also accord with
Canada’s obligations under the UNCRD. Numerous organizations, including the Council of Canadians with
Disabilities, a reputed leader advocating for disability rights, have called for such legislation. Said legislation should
include a statutory review period so as to ensure its efficacy in accordance with changing needs in the disabled
population. It should create a framework prohibiting discrimination for all services provided at the federal level. Preconsultations with disability stakeholders are required to ensure that the act addresses the inadequacies of the fabric
of resources currently offered by the government.
DISCLAIMER: This report was drafted between 2012-2014. Any errors or omissions are due to the passage of time
between the completion of this report, its translation and dissemination. Importantly, the contents of this report do not
constitute legal advice, or a full account of the law on disability rights in Canada. The disability rights domain in law is
comprehensive and broad. As such, the report was not drafted with a view to provide a full legal account of the state of
disability law in Canada.
6
CHAPTER I:
Changing Attitudes Towards People with Disabilities,
Canadians’ Stories
“It is an unfortunate truth that the history of disabled persons in Canada is largely one of exclusion and marginalization.
Persons with disabilities have too often been excluded from the labour force, denied access to opportunities for social
interaction and advancement, subjected to invidious stereotyping and relegated to institutions [...] This historical
disadvantage has to a great extent been shaped and perpetrated by the notion that disability is an abnormality or flaw. As
a result, disabled persons have not generally been afforded the ‘equal concern, respect and consideration’ that s. 15(1) of the
Charter demands.”
– Justice Laforest, Eldridge v British Columbia, [1997] 3 SCR 624 at para 5
7
7
In 2012, the Canadian Survey on Disability revealed that approximately 3.8 million people, or 13.7% of Canadians
at the age of 15 or older reported being limited in their daily activities due to a disability.1 One in every ten workingaged Canadians between the ages of 15 and 64 has a disability and 14.9% of them are women.2 The mounting
number of persons with disabilities, particularly in this age group, paints an ominous reality. This reality is rife with
significant implications for the economy, workplace rules and regulations, and the accessibility of long-term health
care.
For many, disabilities range in severity and longevity. Common disabilities reported by Canadians relate to hearing,
seeing, mobility, flexibility, dexterity, pain, learning, developmental, mental/psychological and memory issues.3
For centuries, the stigma surrounding persons with disabilities has resulted in exclusion, often fuelled by stereotypes.
Specifically, the perception of persons with mental health issues constituting the “other” perpetuates a cycle of
marginalization.4
Societal attitudes toward persons with disabilities have influenced employment and earning potential. Among many
studies, in 2012 the Canadian Human Rights Commission reported a range of statistics reflecting changing attitudes
towards persons with disabilities:
t Adults with disabilities have a lower median household income after-tax than those without disabilities,
particularly in the case of disabled women versus non-disabled women;5
t A noteworthy proportion of adults with disabilities reported being disadvantaged in employment due to their
condition in each labour force category;6
t Just over 59 000 disabled persons had been refused a job interview, approximately 67 000 had been given less
responsibilities in the workplace than co-workers, and approximately 54 000 had been paid less than workers in
similar jobs;7
t Approximately 176 000 persons with disabilities were not in the labour force and nearly 45 000 individuals were
unemployed.8
The far-reaching effects of disabilities in Canada forecast a grim future in which almost everyone will be personally
affected by a disability at some point during their life either personally or through the experience of a loved one.9
Mirroring this reality, the Law Commission of Ontario has reported that disability rates are increasing in all age
groups and that women are more likely to report living with one than men.10
Despite the inevitable setbacks attaching themselves to disabilities, persons with them demonstrate a range of
talents, skills, and interests – many of which go unseen.11 This is not only exemplified by world-renowned stories
1
Statistics Canada. Canadian Survey on Disability (2012). Online: <http://www.statcan.gc.ca/dailyquotidien/131203/dq131203a-eng.htm>.
2
Ibid.
3
Ibid.
4
Tess Sheldon, “It’s Not Working: Barriers to the Inclusion of Workers with Mental Health Issues” (2011)
29 Windsor Year Book of Access Justice 163 at 9 [Sheldon].
5
Canadian Human Rights Commission: Report on Equality Rights of People with Disabilities (2012) at 22.
6
Ibid at 60.
7
Ibid at 59.
8
Ibid at 60.
9
Law Commission of Ontario. A Framework for the Law as it Affects Persons with Disabilities: Advancing
Substantive Equality for Persons with Disabilities through Law, Policy and Practice (Final Report) (Toronto 2012)
at 7 [Law Commission].
10
Ibid at 34-35.
11
David Lepofsky. “The Charter’s Guarantee of Equality to People with Disabilities – How Well Is It Work8
about the many accolades of people such as Terry Fox or Stephen Hawking, but it is also evident in a wide array of
exceptionally talented disabled persons with accomplishments untold and unreported.
Notwithstanding these success stories, disabilities are met with a barrage of pejorative, inaccurate stereotypes which
pervade the public’s perception. Unfortunately, these stereotypes are perpetuated in the labour force, the medical
system, and in educational institutions, to name a few. Hence, some of the policies, laws and regulations framing the
daily operations of these institutions, although seemingly ameliorative on their face, are not the most comprehensive
given the prevailing societal view, or stigma rather, which reinforces an “impenetrable wall of discriminatory
attitudes.”12
Bert Massie, former Chairperson of the Disability Rights Commission in the United Kingdom confirms the valueladen theory associated with policies and laws pertaining to disabled persons:
Attitudes to disability are the major barrier to disabled people’s full participation. From pity, awkwardness and fear to low
expectations about what disabled people can contribute, stereotypical and negative attitudes hold people back.
We often see the impact of negative attitudes in how one person treats another.
But negative attitudes are also the foundation stone on which disabling policies and services are built.
Harmful attitudes that limit and restrict are institutionalized in policies and services
and so maintain the historical disadvantage disabled people have faced.13
[emphasis added]
Attitudes inspired by societal stigma manifest themselves in involuntary institutionalization, forced birth control
and sterilization, and segregation away from the main stream of the population.14 A recent report of the Environics
Research Group indicates that while people think of themselves as being open to the participation of persons with
disabilities in their daily activities, many actually express significant discomfort.15 Moreover, studies demonstrate
that disabled persons experience strong judgment and negative assumptions within the legal system and a lack of
supportive services for persons with mental health disabilities.16
In 2010, Deloitte produced a White Paper outlining how persons with disabilities can be integrated into the
workplace. Their report, “The Road to Inclusion”, provided a comprehensive analysis explaining how barriers to
employment can be penetrated through diverse hiring and inclusive practices. Deloitte highlighted that attitudes
toward disabilities constitute a source of hesitancy in reporting a mental or physical disability to an employer, given
the backlash of stigma.17 They also provide practical solutions for employer to employee accommodations, providing
for a refreshing business perspective – an anomaly from the typical government or organization-based regulatory and
policy recommendations.
Within the last 5 years, numerous reports, such as the one published by Deloitte and the foregoing, sparked
further dialogue in the area of disability rights law in Canada. This peaked interest in reforming disability-rights
infrastructure might be influenced by Canada’s decision to ratify the UNCRD in 2010. The significance of this
ing?” (1998) 16 Windsor Year Book of Access to Justice 155 at 4 [Lepofsky].
12
Ibid at 5.
13
Bert Massie, Speech given to the 5th Annual Disability Research Conference of the National Disability
Authority of the Republic of Ireland. Online: <http://www.nda.ie/cntmgmtnew.nsf/0/5A19C972AF5A7B9380257
1E60052A06B/$File/conf20064.html> [Massie].
14
Law Commission, supra note 9 at 42.
15
Ibid at 42.
16
Ibid at 42.
17
Deloitte: Road to Inclusion - Integration people with disabilities in the workplace (White Paper) (July
2010). Online: <http://www.deloitte.com/assets/Dcom-Canada/Local%20Assets/Other%20Assets/ca_en_Dialogue_on_diversity_080710.txt> at 6.
convention will be discussed in the forthcoming chapters.
Utilizing this report as a backdrop, the PCPCC’s objective is to debunk the myths and stereotypes that plague
persons with disabilities. The committee will demonstrate how preconceived notions about persons with disabilities
are not beneficial on moral grounds, and from an economic vantage point
The PCPCC compiled several testimonials that attest to the problematic presuppositions against persons with
disabilities to further exemplify the research presented. Testimonials are interwoven throughout this report and in
the appendices. Appendices D and E of this report include selected testimonials speaking to the crux of this chapter;
namely, the psychological and humanitarian impact of attitudes and perceptions towards persons with disabilities.
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CHAPTER II:
EXPERT OPINIONS ON THE PITFALLS
IN CURRENT DISABILITY POLICIES
AND ACCOMPANYING TESTIMONIALS
“Accepted ways of thinking, reacting and doing business become firmly embedded in society and can be remarkably
resistant to change […] [b]ut negative attitudes are also the foundation stone on which disabling policies and services are
built. Harmful attitudes that limit and restrict are institutionalized in policies and services and so maintain the historic
disadvantages that disabled people have faced.”
- Bert Massie, Former Chairperson of the UK Disability Rights Commission
11
11
In many ways, expert opinions are relied upon to spearhead public policy. They have the potential to serve as
foundations or launching pads for effective governmental, and private sector reforms. While competing expert
opinions are often the subject of academic, legal and political debates, their utility is salient, particularly in
the context of disability policy-making in Canada. Throughout the course of its research, the committee relied
extensively on the experiences of experts studying disability law in Canada, and the administrators of programs and
centres tasked to assist disabled persons in their daily lives. The findings were revealing. The opinions of most experts
studied exhibited striking similarities and were linked by a common, underlying thread in four areas that permeate
the debate on societal interactions with disabilities: (1) attitudes; (2) human rights and abuse; (3) integration and
inclusion; and, (4) advocacy.
Attitudes
Bert Massie, former Chairperson of the Disability Rights Commission in the United Kingdom, contributed largely
to the dialogue fixated on how attitudes and perceptions adversely shift societal perspectives on disabled persons.
He acknowledges that the current focus, which perpetuates the dependency of disabled persons, sends the wrong
message to society. He also opines on unhelpful attitudes towards people with disabilities including:
Harassment, misplaced and stifling pity or admiration; perceptions of low competence and being an
economic drain and fear that the person will harm themselves or others. For example, people with mental
health problems are viewed as unreliable, unpredictable, lacking judgment and potentially dangerous. But
possibly the most damaging consistent response to disability is simply the low expectations that we have of
disabled people and for them – and, as a consequence, that many have for themselves.18 [emphasis added]
Most importantly, Massie underscores the problem with current societal perceptions that govern disability care. He
argues that our instinct is to protect, and in so doing, we institutionalize dependency, which means we expect little
of persons with disabilities. This begs the question: how can they expect much for and of themselves?19
PUBLIC SERVANTS WITH DISABILITIES
American psychologist and disability scholar,
Dr. Adrienne Asch, proffers a similar
Physically disabled, David Onley is Canada’s first visibly disabled
understanding on the ‘sociability’ of disabilities. Lieutenant Governor, a bestselling novelist, and aerospace expert. It
She discusses how settings alter people’s
was not until he turned 34 years old that he was able to find a first
behavioural patterns around disabled persons.20 full time job. To date, he remains an avid advocate in the disabilityShe provides a personal experiential anecdote
rights discussions.
during which she attended a lecture at an
academic conference when a stranger asked a disabled person, upon first encounter, how she can help her, rather
than introducing herself as she would have otherwise done if she had greeted a non-disabled individual for the first
time.
Focusing on first principles, Massie highlights that daily perceptions and accepted ways of thinking, are the reasons
that society can be remarkably resistant to change.21 Negative perceptions, he purports, drive poor policies and
services for disabled persons, thus institutionalizing historical disadvantages.22 While Massie is not entirely specific
as to what types of institutional disadvantages exemplify these historical inequalities, he refers to antiquated
government, and/or private-based programs with infrastructural regimes as the sources of discrimination.
18
Massie, supra note 13.
19
Ibid.
20
See generally Dr. Adrienne Asch, “Critical Race Theory, Feminism and Disability: Reflections on Social
Justice and Personal Identity” (2001) 62 Ohio State Law Journal 391.
21
Massie, supra note 13.
22
Ibid.
12
Combined, these contributions underpin one of the numerous objectives of this report; that is, to shift awareness on
the deficiencies in federal disability policies in Canada and incite meaningful reforms. The idea is that once tainted
perceptions about disabled persons are altered, the formulation of federal and provincial-based policy will ultimately
be influenced.
Human Rights
The foregoing attitudes and perceptions inspired the reasoning behind the precise choice in drafting particular
rights in the UNCRD. This proposition is met with agreeable theories from scholars and disability-rights leaders on
a global scale. For example, many have commented on the efficacy of the Convention in terms of its small-scale
application, despite its global reach.
For example, Harvard-based Professor Mary Anne Glendon aptly canvasses the effect of the Convention as one with
a grass-roots effect on implementation at the local level. Quoting directly from the words of Eleanor Roosevelt, she
discusses the trickle-down implications of the Convention:
Where, after all, do human rights begin? In small places, close to home – so close and so small that they cannot be
seen on the maps of the world. Yet they are the world of the individual person… these convictions of the framers
undergird one of the most remarkable features of the Declaration: its attention to the small places where people first
learn about their rights and how to exercise them responsibly – family, schools, workplace, and religious
and other associations.23
The priority of culture, Glendon writes, was the intention to be captured by the framers of the Convention. The
idea was to counter the paucity of guidance available on the manner in which the rights of all humans, including
the disabled, must apply locally. Glendon writes that the seedbeds of character, and competence, combined with
the rule of law, political freedoms, social security and international cooperation all comprise the dynamic ecology of
freedom.24 Her argument suggests that the Convention is a dynamic document with touchstones that ascribe to the
norms of a free and democratic society.
The Convention, adds Diane Richler, President of Inclusion International, does not establish new rights, but rather
new concepts for those rights to become a reality.25 It shifts the attention away from persons with disabilities as
objects into the domain of subjects that are capable of making decisions about their lives through terminology such
as “promote”, “protect” and “ensure” the full and equal enjoyment of all human rights and freedoms.26
More specifically writes, Dr. Paul Gordon Lauren, the first article of the Convention; namely that “all human beings
are born free and equal in dignity and rights”, insists that “human rights are natural (not granted by man-made
governments, but inalienable and inherent to people simply by being human), are equal (not just for one segment of
society, but the same for all), and are universal (not restricted to a few places or a few actors, but everywhere in the
world).”27
23
Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human
Rights. (New York: Random House, 2002) at 239-241.
24
Ibid.
25
Diane Richler the President of Inclusion International was actively involved in the drafting of the UNCRD. She was the former Executive Vice President of the Canadian Association of Community Living (CACL).
This quote is taken from her article “Canada to ratify Convention on the Rights of Persons with Disabilities –
Will it make a difference in people’s lives?” (2010) AACL Connection. Vol 3, Issue 1, at 10 [Richler].
26
Ibid.
27
Dr. Paul Gordon Lauren, “Celebrating 60 Years of Human Rights” in The Universal Declaration of Human
Rights: Launching and Sustaining a Revolution. (2008) 13 E Journal USA V 11 at 12. Online: < http://photos.state.
gov/libraries/kuwait/63599/PDF/Human%20Rights.pdf>.
13
Entrenching rights, however, is not a panacea. Catherine Frazee, formerly the Chief Commissioner of the Ontario
Human Rights Commission, cautions that the protection of rights in-and-of themselves is insufficient because
they do not trickle down from great lines of law and jurisprudence, but rather through respect and equality.28
Interestingly, she posits that despite the introduction of lauded human rights provisions, there continues to be
a match of poverty, abuse and despair.29 This negative correlation, between the codification of such rights in
international law and unintended effects is unusual, but speaks to the need for onsite, direct implementation of the
tenets of the Convention.
Importantly, these reflections capture the view that despite the fact that the Convention may ostensibly propose a
theoretical framework from which nations may or may not choose to operate, it symbolizes an international effort
to dramatically alter the myriad of negative perceptions that attach themselves to the treatment of persons with
disabilities. In other words, there is more than meets the eye upon a reading of the provisions in the Convention.
The underlying rationale is a macrocosm of the shift in societal perceptions that individual nations are encouraged to
foster in their own countries with the Convention as a blueprint for action.
Integration/Inclusion
A reoccurring theme echoed by numerous scholars and professionals pertains to the need for policies that foster
integration and inclusion. Some allude to the social and financial costs of the segregation of disabled persons to
society. Others discuss how the socialization of segregation is inherent to our interactions with disabled persons.
REVERSING INCLUSION
Part and parcel of the implementation of
inclusion is the movement away from thinking Hannah Gunderson has been successfully included in her local kindergarten
of people with disabilities as “objects of charity school just outside Edmonton, Alberta. When she was 10 years old,
and rehabilitation”, and towards their protection administrators from her school removed her from the school bus that typically
in which they are recognized as “subjects with transported her to and from school to a small wheelchair accessible van.
Hannah’s schoolmates, along with members from her community attempted to
rights, capable of making decisions about their convince the school’s administration to re-integrate Hannah with her classmates
lives”, as Catherine Frazee notes.30 Frazee
on the same bus, but the school did not permit her travels accordingly.
further advocates that access and inclusion is
Eventually, however, a couple of friends were permitted to travel with her by van.
about “access to human relationship’, which
suggests that human interaction is one vessel through which inclusion is made possible.
Henry Enns, founder of Independent Living in Canada, adds that integration, rather than dependence, should
constitute an emphasis on enabling ability, rather than disability.31
In a guide developed for parents of children with disabilities, the Yellowknife Association for Community Living
discusses the gravitas of inclusion in the context of education:
28
Catherine Frazee is a distinguished disability scholar, human rights activist and former Chief
Commissioner of the Ontario Human Rights Commission. The quote is extracted from a speech presented at A
New Way of Thinking? Towards a Vision of Social Inclusion, a conference sponsored by the Laidlaw Foundation
and the Canadian Council of Social Development, November 8, 2001.
29
Ibid.
30
Richler, supra note 25.
31
Henry Enns was hired by the Mennonite Central Committee in the early 1980s, to travel the country
promoting the vision of Independent Living. The Mennonite Central Committee would also provide the seed
funding to open the first two Independent Living Centres in Kitchner, Ontario and Winnipeg Manitoba. This
quotation is extracted from John Lord, “Impact: Changing the way we view Disability - The History, Perspective
and Vision of the Independent Living Movement in Canada”, (2010) Independent Living Canada at 23.
14
Inclusion is not children with disabilities spending the majority of the school day in a special ed room and being
‘included’ in regular classes for art, PE, and music. This is visitation. Inclusion is not children with disabilities
attending regular education classes, but being repeatedly pulled out for special services through the day. This is
part-time mainstreaming. Inclusion is not children with disabilities being in regular classes, but sitting at the back
of the room with full-time aides. This is physical integration. Inclusion is not typical children (peer role models)
visiting children with disabilities in special ed classrooms. This is reverse mainstreaming. Inclusive education
involves much more than being in the same classroom as other students. True inclusion only happens when a whole
school believes in diversity and creates a place where everyone belongs. Inclusion means being a part of the school
community, both in and out of class. It means having friends and feeling welcome. 32
[emphasis added]
Notwithstanding the child-centric nature of these comments, the principles above apply equally to adults with
disabilities. The underlying premise is that inclusion is made possible when distinctions are not utilized as blueprints
to formulate policies applicable to the daily life of a disabled person. In other words, recognizing the similarities
between those with and without disabilities,
INCLUSIVE EDUCATION
rather than magnifying the very obvious
physiological and intellectual distinctions,
Stephanie Phillips was diagnosed with Downs Syndrome. Despite
particularly within the classroom, are more
this impediment, she completed university, works at a health
useful approaches to the implementation of
and fitness store and is very active in her community in British
services provided by the state. To be included,
Columbia. She pioneered inclusion in regular classrooms at
says Al Etmanske from the PLAN Institute, is
the University of Victoria as the driver of an inclusive auditing
an important and continuing challenge, among
program for those with developmental disabilities, also known as
many, for all marginalized groups.33 Trust, and
the Inclusive Post Secondary Education Movement. Stephanie’s
reciprocity comprise the core values required
many community engagements include but are not limited to
for creating our institutions, systems and
membership on local committees. In 2009, she graduated from
governments.34
the University of Victoria with a Certificate of Completion from
the University of Victoria. She is living proof of the transformation
From an economic standpoint, according to the
that is within reach when inclusion is effected.
Canadian Association for Community Living,
the total cost of segregating people with intellectual disabilities has been estimated to be $4.6 billion annually in lost
productivity and unnecessary social assistance payments.35
Commonplace as it may sound, inclusion is the linchpin to successful frameworks designed to provide services for
disabled persons, from education to tax credits, employment opportunities, and the health care system. Not only
does the theoretical concept of inclusion reign dominant in the work of experts devoted to the disabled community,
but it is also pivotal for the delivery of services provided by organizations and agencies.
32
Yellowknife Association for Community Living, “Parent and School Partnerships making it work: A resource for parents of children with developmental disabilities” (March 2008) at 4-5.
33
Al Etmanski, “A Call for Ambassadors: Sharing Core Values for Sustaining Caring Communities” (2001)
Abilities, Issue 46 at 40-41.
34
Ibid.
35
Dialect: News Magazine of the Saskatchewan Association for Community Living, “October is Community
Living Month” (2010) at 6.
15
CHAPTER III:
Canada’s International Obligations –
The United Nations Convention
on the Rights of Persons with Disabilities
“The Universal Declaration of Human Rights did something that had never been done before: it proclaimed a universal
vision of fundamental values and normative principles, or what it called ‘a common standard of achievement for all peoples
and all nations.’ In language that merits considerable attention and reflection, the very first article declared: ‘All human
beings are born free and equal in dignity and rights.’ This single sentence boldly insisted that human rights are natural (not
granted by man-made governments, but inalienable and inherent to people simply by being human), are equal (not just for
one segment of society, but the same for all), and are universal (not restricted to a few places or a few actors, but everywhere
in the world). ... The Universal Declaration has provided ‘a common language of mankind’ when speaking of human
rights.”
-Dr. Paul Gordon Lauren Regents Professor at the University of Montana (Human Rights Scholar) in “The
Universal Declaration of Human Rights: Launching and Sustaining a Revolution”, (2008) 13 E Journal USA 11.
16
16
With over 650 million36 persons struggling to cope with disabilities in the world, the UNCRD is heralded as the first
human rights treaty of the 21st century targeting civil, political, economic, social and cultural rights premised upon
the theme of non-discrimination.37 Its coming into force is symbolic of a modern vision which brings civil liberties
to the forefront of global affairs with respect to the most vulnerable individuals in the world.
It is unclear what caused the spark of disability-rights scholarship at the outset of the early 1970s within the
international playing field. Analysis of the impact of the Second World War, the popularity of the civil rights
movement, and the cusp of the de-colonization movement may shed some light onto this inquiry. Perhaps this explains
the slogan of the International Disability Caucus – “nothing about us without us”, a group comprised of international,
regional and national NGOs for persons with disabilities, whose voice dominated the dialogue during the new
millennium.
Human rights scholar, Gerald Quinn, alludes to two sources that may have triggered interest in the disability-law
making regime: first, the birth of the United States’ Americans with Disabilities Act (ADA) in 1990 and second,
former Irish President Mary Robinson’s efforts to impact policy development in the area of disability law prior to
becoming the UN High Commissioner for Human Rights.38
To date, some 132 countries have ratified the UNCRD, meaning they have legally consented to the provisions of
the treaty before the international community, thus imposing an obligation on their governments to implement and
uphold its provisions as required. Some of the most recent signatories include Iraq and Norway.39 It was not until
March 11, 2010 that the Canadian government ratified the UNCRD.
The pathway to the UNCRD requires careful study, as it is unlike any of its kind. Figure 1 on the next page details
the progression of international disability law within the international community beginning in the 1970s with the
United Nations. It represents a glimpse of the timeline out of which the UNCRD was born. Of significance is the
development in language used to describe persons with disabilities. For a full timeline leading to the inception of the
UNCRD, see Appendix B.
Pillars of the UNCRD
Concerning the UNCRD’s legal significance in Canada, Professors Ravi Malhotra and Robin Hansen argue that since
the Canadian government has not legislated contrary to the Convention, it is assumed to be subsumed within the
common law by virtue of its ratification.40 They argue that the ratification of the UNCRD holds four potential areas
of impact that Canadian legislators must consider:
1. That the UNCRD contains customary international law principles which have impacted the common law
regime in Canada;
2. That the UNCRD contents may have been implemented domestically explicitly or implicitly;
3. That the UCRD affects the interpretation of Canadian statutes;
4. That the UNCRD affects the interpretation of the Charter of Rights and Freedoms.41
36
Quinn, Gerald, “A Short Guide to the United Nations Convention on the Rights of Persons with Disabilities” in European Yearbook of Disability Law. Eds. Gerald Quinn & Lisa Waddington (Oxford: 2009) Vol 1 at p 89
[Quinn].
37
Ibid at 91.
38
Ibid at 95.
39
United Nations Enable: Development Rights for All. Online: <http://www.un.org/disabilities/>.
40
Ravi Malhotra & Robin Hansen, “UN Convention on the Rights of Persons with Disabilities and its Implications for the Equality Rights of Canadians with Disabilities” (2011) 29 Windsor Year Book Access to Justice
73 at p 4 [Malhotra & Hansen].
41
Ibid.
17
FIGURE 1: The Evolution of International Disability Rights
2008: United Nations Convention on the Rights of Persons
with Disabilities comes into force.
2007: UN Special Rapporteur publishes special report on
right to education of persons with disabilities.
2002-2006 Ad-hoc Committee established in
2001 drafted the Convention on the Rights of
Persons with Disabilities
1983-1992 UN Decade of Disabled Persons Declared
1998: UN Consultative Expert Group on
International Norms and Standards on Disability
recommends creating working group to address
violations of disability rights and considered need
for new international agreement on disability rights
1994: Commission on Human Rights
Resolution 1994/27, ‘human rights and
disability’ 4 March 1994 (Geneva)
1993: UN drafts Standard Rules for
the Equalization of Opportunities for
Persons with Disabilities
1982: General Assembly
establishes World Programme for
Action for Persons with Disabilities
1981: UN declares International
Year of Disabled Persons
1975: Declaration on the Rights of Disabled Persons
1971: Declaration on the Rights of Mentally Retarded Persons
18
Malhotra and Hansen hold that the right to be free from discrimination is already recognized as customary
international law, despite its inclusion in the UNCRD.42
A provision classified as customary international law43 is considered binding among all states, notwithstanding that a
state does not retain membership with the United Nations or is a party to the ratification of a convention. After all,
customary international law is considered universally binding on all states and “constitutes the substratum of common
legal rights and obligations of the entire community of states” even if states have not actually consented.44 It follows
that widespread state practice and acknowledgement of practices that mitigate the implications of discrimination
against disabled persons arguably qualifies as customary international law, and is thus binding on Canada.
The problem with discerning the reception of customary international law, such as the right to be free from
discrimination and to be treated with equal dignity and respect, lies with the interpretation of ambiguous jurisprudence.
Traditionally, Canada has adhered to a ‘transformative’ or ‘dualist’ framework with respect to international treaties
and conventions. According to the transformative model, a rule “cannot have effect domestically unless it has been
transformed into a domestic legal rule by one of the domestic system’s law-making processes.”45 Although the
Canadian model of reception is said to mirror that of the United Kingdom, which receives international law without
passage by domestic legislatures by means of a monist framework, the contrary has been practiced, and to date, is
not deemed reprehensible by the courts.
In Reference Re Powers of Ottawa (City) and Rockliffe Park, [1943] SCR 208, the court held that legislation could
expressly override international law.46 Complementing this ruling, in 2004 the Ontario Court of Appeal ruled
“customary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted
by contrary legislation.”47 In R v Hape, the Honourable Justice Lebel of the Supreme Court of Canada notes:
In my view, following the common law tradition, it appears that the doctrine of adoption operates in Canada such
that prohibitive rules of customary international law should be incorporated into domestic law
in the absence of conflicting legislation. The automatic incorporation of such rules is justified
on the basis that international custom, as the law of nations,
is also the law of Canada unless, in a valid exercise of its sovereignty,
Canada declares that its law is to the contrary.48
[emphasis added]
Notwithstanding the required formalities for the reception of international law, Canada has not passed legislation
contrary to the provisions enacted in the UNCRD. Consequently, questions surrounding the applicability of the
UNCRD to Canadian law, absent legislative approval, are moot unless a court action is commenced against the
Canadian government for failing to uphold the UNCRD domestically, in which case a judicial opinion would be
required to clarify this point.
42
Ibid at 13.
43
Customary international law binds all states regardless of express indications of consent, excepting only
those states that have been sufficiently persistent in rejecting the customary principle prior to its emergence as a
binding norm. It is created by sufficiently general and universal state practice, undertaken by states with a sense
of legal obligation (opinio juris): See Craig Forcese, National Security Law: Canadian Practice In International
Perspective (Toronto: Irwin Law, 2009) at 26-27.
44
John Currie, Public International Law. 2nd Ed (Toronto: Irwin Law: 2008) at 187.
45
Ibid at 225.
46
Ibid at 228.
47
Bouzari v Islamic Republic of Iran (2004), 71 OR (3d) 675 at para 65.
48
R v Hape [2007], 2 SCR 292 at para 39.
19
Formally speaking, Canada’s ratification is understood as a “solemn act on the part of the Head of State through
which approval is given and a commitment to fulfill its obligations is undertaken,”49 despite the absence of
incorporating the UNCRD into Canadian law. In short, the executive holds a royal prerogative to make and
transform treaties. Given the absence of contention by Opposition Members in the House of Commons following
the federal government’s ratification of the UNCRD, one could argue that the principles of the UNCRD have been
subsumed into Canadian law.
Key Provisions of the UNCRD
PREAMBLE:
Reaffirming the universality, indivisibility, interdependence and interrelatedness of all
human rights and fundamental freedoms and the need for persons with disabilities to be
guaranteed their full enjoyment without discrimination.
Article 1 (Purpose)
The purpose of the present Convention is to promote, protect and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all persons with disabilities,
and to promote respect for their inherent dignity. Persons with disabilities include those
who have long-term physical, mental, intellectual or sensory impairments which in
interaction with various barriers may hinder their full and effective participation in society
on an equal basis with others.
As it currently stands, the UNCRD is comprised of 50 articles, many of which mirror the fundamental components
of the Canadian Charter of Rights and Freedoms and relevant federal and provincial human rights and nondiscrimination statutes. It is a compilation of articles asserting fundamental human rights for disabled persons
ranging from the right to liberty, education and employment. Its substance and structure emulates key values in
Canadian law, particularly with respect to access to justice and equality before the law.
The preamble of the UNCRD sets out the underlying theme of the Convention which seeks to ensure that disabled
persons are guaranteed the full enjoyment of life, as all other citizens are, free of discrimination. It confirms the
importance of the universal acclamation to many fundamental freedoms to which many nations ascribe, and have
adhered to both through the United Nations Declaration on Human Rights and domestic constitutional documents.
The purpose of the Convention, unlike the preamble, was much more difficult to agree upon for the drafters.50 The
manner in which the purpose was crafted, nonetheless, resulted in a broad definition of disabilities from which states
could choose to adopt or use as a model framework.
With respect to implementation of the full and equal enjoyment provision both in the preamble and the purpose of
the UNCRD, the first article demarcating fundamental principles from implementation is Article 4. It requires that
signatories “take into account the protection and promotion of the human rights of persons with disabilities in all
49
Malgosia Fitzmaurice, “The Practical Working of the Law of Treaties” in International Law. 3d Ed. Ed.
Malcolm D. Evans (Oxford: Oxford University Press, 2010) at 177.
50
Stefan Tromel, “A Personal Perspective on the Drafting History of the United Nations Convention on
the Rights of Persons with Disabilities” in European Yearbook of Disability Law. Eds. Gerald Quinn & Lisa
Waddington (Oxford: 2009) Vol 1 at 122 [Tromel].
20
policies and programmes.”
Article 4 imposes obligations on member states to consult with persons of disabilities and organizations in the
development and implementation of legislative initiatives and policies, which as Professor Quinn argues, gives rise to
the slogan “nothing about us without us.”51
Article 6 calls for the implementation of measures that ensure the full enjoyment of life. Importantly, it recognizes
that women and girls with disabilities are subject to “multiple discrimination”. Coined in the 1980s by Kimberle
Crenshaw, multiple discrimination refers to the concept that identities and discrimination can only be understood
by taking all relevant individual, interpersonal and contextual factors into account, rather than maintaining a
single characteristic.52 Surprisingly, however, there is no mention of multiple discrimination against persons with
disabilities in terms of ethnic origin and/or age.
Article 8 requires member states to raise awareness by promoting positive perceptions and greater social awareness,
implementing awareness-training programs, and encouraging media outlets to write within the scope of the
Convention, among many things.
In keeping with the spirit of Article 8, the PCPCC recommends both a national education program for law
enforcement and medical personnel as well as a nation-wide media campaign to delegitimize stereotypes and stigma
towards persons with disabilities. The recommendation is two-fold. It first highlights the need to disseminate
information to the Canadian public by various means of communication (e.g. print, radio, television, etc.) in order
to mitigate the harm that results from societal stigma against persons with disabilities. Like any public education
campaign, materials and messages should be developed in tandem with public policy stakeholders and disabilityrights organizations in order to effectively address integral issues for which the disability-rights community has
advocated while targeting various pockets of the Canadian population.
Second, the recommendation addresses the need to educate both law enforcement officials and medical professionals
dealing with disabilities on a professional level with victims, accused persons or patients. This recommendation
would seek the implementation of Article 8(d), which identifies awareness-training programs regarding persons with
disabilities.
In a report published by Professor Hilary Brown, a consultant in cooperation with the Council of Europe Working
Group on Violence against and Ill-treatment as well as abuse of Persons with Disabilities, a range of interventions is
recommended to increase awareness within the public sphere. These include:
t Equitable and respectful media coverage of persons with disabilities;
t Materials for disabled person who are unsure of what their rights are and how to file a complaint (ex. with a
human rights tribunal);
t Media campaigns which show people how to communicate and interact with disabled persons;
t Help lines offering advice for carers and staff;
t Links across mainstream agencies such as social services, health, police and criminal justice systems;
t Regulation of settings and inspection standards for service providers and commissioners;
t Screening of staff working with disabled persons for service providers and commissioners;
t Training for mainstream agencies dealing with disabled persons (ex. women refugee centres, victim support,
etc.); and
t Integration and anti-discrimination campaigns highlighting human rights of people with disabilities and to
51
Quinn, supra note 36 at 101.
52
Aart Hendriks, “The UN Disability Convention and (Multiple Discrimination): Should EU NonDiscrimination Law be Modeled Accordingly?” in European Yearbook of Disability Law. Eds. Gerald Quinn &
Lisa Waddington (Oxford: 2010) Vol 2 at 14.
21
counter negative stereotypes.53
These are only few of the many initiatives that may be adopted to implement the first recommendation postulated
by the PCPCC.
RECOMMENDATION 1:
A) That a nation-wide media campaign be devised in collaboration with the disability rights
community in order to promulgate and foster continued dialogue on the state of disabled
persons in Canada; and further to reduce societal stigma towards persons with disabilities.
An effective media campaign would require a range of communication mediums including but not limited to a
social media presence and other web materials. Collaborative partners may include disability rights organizations
with resources already invested in social media and web tools. Materials should also be provided directly to
persons with disabilities so as to ensure that services remain accessible. In order to ensure that services such as
transportation and health care are accessible, as required by Article 9 of the UNCRD, informative materials, such
as leaflets, may be disseminated to persons with disabilities through health care providers, by mail, law enforcement
officials, etc. An emphasis should also be made on disabled Aboriginal and First Nations persons. To date, based
on research conducted with respect to federal stakeholders such as the Canadian Council for Disabilities and the
Canadian Association for Community Living, there is no indication that a media campaign has been engineered or
implemented.54
AND
B) That a national education program be launched for the purpose of educating law
enforcement personnel and medical professionals as to the state of crime against persons with
disabilities; and further to provide social context in terms of existing stigma/prejudice.
Such a program would identify proper detection, intervention and reporting of disability crime while attempting to
reduce stigma for individuals who deal with disabled persons on a day-to-day basis. It may be executed in the form
of workshops or seminars by an organization from the disability rights community working in conjunction with
police/medical colleges. An ideal national program should include a comprehensive curriculum, which can be used
for both officers in the training phase and those currently serving in the force, as well as medical professionals.
Subsequent to the articles which explore the definition of a disability and the human rights obligations for member
states in the UNCRD are the rights accorded to persons with disabilities. Their breadth is extensive and covers many
of the liberties entrenched within the Canadian Charter of Rights and Freedoms, particularly in terms of legal, and
equality rights. A brief snapshot of the most fundamental liberties listed in the UNCRD relevant to this inquiry can
be found in Appendix C.
Most noteworthy among the provisions listed in Appendix C are those calling on member states to formally
implement disability-centric resources. For example, Article 10 recognizes an inherent right to life and imposes an
obligation on states to take “all necessary measures” to ensure the practical employment of the convention. While the
53
See: Hilary Brown, “Safeguarding adults and children with disabilities against abuse” (2003) Council of
Europe Publishing at 120-121
54
Havi Echenberg, “Current Status of Recommendations in the Draft Report “Not to be Forgotten – People
with Disabilities and our Common Future” (10 July 2014) Library of Parliament at 4 [LOP].
22
phraseology “all necessary measures” is not formally defined, it can be construed as anything that is feasible within
the affordable means of the state to ensure that the provisions are effectively executed.
Article 13 provides for procedural and age-appropriate accommodations to facilitate the role and inclusion of
persons with disabilities as participants in all legal proceedings. Article 16 requires states to take “all appropriate
measures” to ensure that legislative, administrative, social, educational and other measures both inside and outside
the home are implemented to circumvent all forms of violence and abuse. The same applies in the area of health
services and the employment sector (Articles 26 and 27). One can infer from the overt, and forward textual
context of Article 33, that the convention requires states to establish focal points within, and at different levels of
government for matters relating to its implementation.
The tone embedded in the wording of the Convention suggests that the drafters sought a proactive, rather than
passive tone in the drafting of the Convention. Nearly each of the provisions requiring institutional implementation
include the verb “shall”, rather than “may”, intimating that the provisions are mandatory, rather than discretionary,
for member states.
The same tone inferred from the Convention rings clear in Canada. In the federal government’s first report to the
United Nations’ Committee on the Rights of Disabled Persons in 2014, reference was made to the adherence and
implementational status of the Convention pursuant to Article 33(2):55
Canada’s interpretative declaration in relation to Article 33(2) clarifies that Canada
implements this article at both the federal and P/T levels through a variety of
mechanisms such as courts, human rights commissions and tribunals, public guardians,
ombudspersons, and intergovernmental bodies. . . .
Canada’s framework pursuant to Article 33(2) is comprised of several elements, including
government reporting and promotional activities, and the work of F-P/T human
rights commissions and tribunals, the courts, public guardians and ombudspersons and
civil society organizations across Canada. Combined, these mechanisms play a role in
promoting, protecting and monitoring the rights set out in the Convention. After giving
careful consideration to the offer by the Canadian Human Rights Commission to be
designated to carry out monitoring functions in respect of the Convention, Canada
determined that it could maintain and rely on existing mechanisms to fulfill its
obligations under Article 33(2).
Similarly, Article 27 strikes at the heart of many legislative initiatives targeting reasonable accommodation in the
workplace across Canada and in other jurisdictions across the globe. It also embraces the right to just and favourable
conditions of work on an equal basis with others.56
Equally compelling in its utility is the mandate requiring state parties to collect appropriate information, including
but not limited to statistical and research data, in order to implement the policies and give effect to the spirit of the
55
See Convention on the Rights of Persons with Disabilities and Optional Protocol. Online: <http://www.
un.org/disabilities/documents/convention/convoptprot-e.pdf>.
56
Quinn, supra note 36 at 110.
23
Convention in Article 31. This provision calls for states to gather information and assure the confidentiality of those
consenting to the use of their information.
As often alluded to by scholars, public literature and statistics in the area of disability rights is scarce. While this
report contains a variety of statistics, the most recent domestic survey is the 2012 Canadian Survey on Disability,
conducted by Statistics Canada. The statistics compile information from a national survey of Canadian adults whose
everyday activities are limited because of a long-term condition or health-related problem.57
Additionally, many of the statistics that exist within the public realm are derivations of work financed and produced by
not-for-profit organizations or commissions. The absence of statistics may lead to an inadequate or unbalanced set of policy
recommendations. Without such data, it becomes difficult to identify areas requiring improvement, particularly the delivery
of services to disabled persons. With these concerns in mind, the PCPCC endeavoured to recommend the establishment of
a national research office in order to ameliorate the flux of quantity and quality of data that currently exists.
RECOMMENDATION 2:
That a national research office at a Canadian University be established and dedicated
specifically for the purpose of gathering, analyzing and synthesizing data pertinent to persons
with disability in Canada.
The appropriation of such research data is in accordance with Canada’s obligations pursuant to Article 31 of
the Convention on the Rights of Persons with Disabilities, which requires state parties to “undertake to collect
appropriate information, including statistical and research data” in order to “assess state parties’ obligations under
the present convention and to identify and address the barriers faced by persons with disabilities in exercising their
rights”. This research office holds the potential to serve as a foundational resource and a “go-to” academic research
laboratory for organizations and governments at various levels across Canada.
According to research conducted by the Library of Parliament, there is no entity that has undertaken a function
akin to Statistics Canada in respect of data-gathering regarding disabilities in Canada. Since 2010, however, the
Social Sciences and Humanities Research Council (SSHRC), a federally funded agency, has awarded many research
grants in the area of disability studies.58 In 2013, a project titled “Income security and labour-market engagement:
envisioning the future of disability policy in Canada” received an award of more than 2.5 million dollars over 7
years, which was used to create the Centre for Research on Work Disability Policy (CRWDP) based out of the
Institute for Work and Health in Toronto.59 The underlying purpose of the research program is to improve policy
that fosters paid labour-market engagement of people with disabilities, and to establish the field of work-disability
policy in Canadian universities.60
While the CRWDP appears to address the recommendation made by the committee, the scope of research analysis is
premised on disabilities and the work-life environment. Expanding the mandate for such an office paves the way for
a breadth of data that can be utilized for awareness campaigns, and numerous research materials for scholars across
universities in Canada. With changes to the resource landscape of Statistics Canada, the paucity of information
identifying socioeconomic issues, inter alia, warrants a national research office with a broader base of research
analysis for a more holistic account of Canadians living with disabilities. It should be underlined, however, that this
57
LOP, supra note 54 at 2.
58
Ibid.
59
Ibid. See also Centre for Research on Work Disability Policy. “Backgrounder: About the Centre for
Research on Work Disability Policy.” Online <http://www.crwdp.ca/en/news/2014-02-04/backgrounder_about_
crwdp>.
60
Ibid.
24
recommendation is not intended to disparage the work of the CRDWP, but rather expand on its mandate for a more
expansive analysis.
25
Chapter IV:
New Zealand, Australia,
United Kingdom, and the United States:
A Focused Assessment on Disability Law Frameworks in
Similar Nations
26
26
This chapter will provide an analysis of the disability law regime in four different developed countries with similar
governmental infrastructure, largely derived from the commonwealth. Each subsection below will provide a detailed
account of the disability-rights regimes in New Zealand, Australia, the United States and the United Kingdom. The
order of each synopsis is based on the relative strength of the relevant regime as compared to Canada, the first being
the strongest.
NEW ZEALAND
For decades, New Zealand has been a global leader in an effort to marshal the making of a Convention which
illuminates the rights of disabled persons on the ground. For example, Ambassador Mackay from New Zealand,
former chair of the ad hoc committee that wrote the UNCRD, played a pivotal role in ensuring that the Convention
was drafted through the contributions of as many NGOs representing the interests of persons with disabilities.61
Through the State Sector Act, introduced in 1988, New Zealand ensured that every employer in the public service
promoted equal opportunities to all of its employees. Shortly thereafter, the institution of the Bill of Rights (1990)
affirmed that everyone has the right to freedom from discrimination on the grounds of disability.62 The Bill of
Rights, coupled with the Human Rights Act, 1993 provide:
1. It is unlawful for employers to discriminate against persons with disabilities in the course of hiring, employing or
dismissing people;
2. A requirement for employers to take all practical steps to eliminate hazards which could include harm arising
from bullying or harassment;
3. The possibility for claims to be submitted to the courts with a course of action for awarding potential remedies;
4. Long-term financial disability support services.
Moreover, the Human Rights Act, 1993 defines ‘disability’ as “a physical disability or impairment; physical
illness; psychiatric illness; intellectual or psychological disability or impairment; any other loss or abnormality of
psychological, physiological or anatomical structure or functional reliance on a guide dog, wheelchair or other
remedial means.”63 Its breadth emulates that of the UNCRD and covers physical, mental and intellectual disabilities.
New Zealand’s comprehensive definition of “disability” emulates the manner in which it structures its institutional
makeup. This is evidenced by the existence of legal services64 dedicated specifically to disabled persons, a Ministerial
portfolio for disability issues within Cabinet, investigations undertaken by the Disability Commissioner when there
are breaches of Code of Health and service consumer rights65 and the sustenance of the Office for Disability Issues,
established in 2002 to provide a focus on disability across government and implement the New Zealand Disability
Strategy.66 New Zealand’s commitment to disability-rights is also reflected in the New Zealand Language Bill, 2004
which designates sign language as one of three official languages.67
61
Tromel, supra note 67 at 117.
62
New Zealand Response to UN Re: Convention Implementation at p 1 (See Appendix D for full response).
63
See Human Rights Act, 1993 s. 21(1)(h) in Diesfeld, Kate, “Legal Services for Disabled People in New Zealand”. Online: <http://cirrie.buffalo.edu/encyclopedia/en/article/256/>.
64
Ibid.
65
Ibid.
66
Office for Disability Issues. “Disability in New Zealand: A Changing Perspective”. Online: <http://www.
odi.govt.nz/resources/guides-and-toolkits/disability-perspective/disability-nz.html>.
67
Ibid.
27
Briefly mentioned above, the New Zealand Disability Strategy, 2001 resulted from a lengthy consultation period
commissioned by the Minister for Disability Issues, which highlights 15 key objectives.68 Following the release
of the disability strategy, the government of New Zealand sent updates to the United Nations Office of the High
Commissioner for Human Rights reporting on the implementation of their obligations under the UNCRD as a
member state. The disability strategy primarily focuses on the following objectives:
t
t
t
t
t
t
t
t
t
t
t
t
t
t
Encouraging and educating the non-disabled society;
Ensuring rights for disabled persons;
Providing the best education;
Providing opportunities in employment and economic development;
Fostering leadership by disabled people;
Fostering an aware and responsive public service;
Creating long-term support systems centered on the individual;
Supporting lifestyle choices;
Supporting quality living in the community for disabled persons;
Supporting recreation and culture for disabled people;
Collecting and using relevant information about disabled persons and issues;
Promoting the participation of disabled Maori and Pacific peoples;
Enabling disabled children and youth to lead full and active lives;
Promoting the participation of disabled women in order to improve quality of life, value families, Whanau and
people providing ongoing support;
t Collection of data.69
Many of the underlying themes in New Zealand’s 15-point plan are echoed by the PCPCC’s recommendations.
New Zealand’s emphasis on its ethnically diverse communities such as the Pacific70 peoples along with the
indigenous Maori71 population represents a strong blueprint from which Canada could model a disability-rights
national campaign, especially with respect to Aboriginal and First Nations people, and to which services can be
dedicated.
The central legislative scheme governing disability law is the New Zealand Public Health and Disability Act, 2000.
Its purpose is to enable public funding, health services, and improve the health of citizens with disabilities. The
Act requires the Minister to determine how to best execute its mandate through consultations, appointments to
the national advisory committee on disabilities, and provides discretion to the Minister to conduct special health
inquiries.72 Interestingly, the Act created a pharmaceutical management agency, also a Crown entity, specifically
responsible for ensuring that persons with disabilities are provided with the pharmaceuticals they require on a day-
68
Office for Disability Issues. “History of the Strategy”. Online at: <http://www.odi.govt.nz/nzds/strategyhistory.html>.
69
Ministry of Health. The New Zealand Disability Strategy. Making a World of Difference Whakanui Oranga (Wellington, NZ: April 2011) Online: <http://www.odi.govt.nz/documents/publications/nz-disability-strategy.
pdf>.
70
The Pacific people are represented by at least 13 distinct languages and cultural groups and include
people born in the Pacific Islands and New Zealand. It is estimated that 6.5% of the population is comprised of
Pacific peoples. See Ministry of Pacific Island Affairs. Online: <http://www.mpia.govt.nz/pacific-peoples-in-newzealand/>.
71
The Maori are the indigenous people of New Zealand comprising 14.3% of the population. Maori Online.
Online: <http://www.maori.com/aotearoa>.
72
New Zealand Public Health and Disability Act 2000. “Part 2: Responsibilities of Minister”. Online: <http://
www.legislation.govt.nz/act/public/2000/0091/latest/DLM80486.html>.
28
to-day basis.73 Additionally, it established a Health Quality and Safety Commission74 to coordinate and monitor
support services to individuals with disabilities across the country in addition to the district health boards that report
to the government with financial statements.
A range of other frameworks exist in New Zealand’s programs for disabled persons including:
1. The Mainstream Employment Programme providing support for those with significant disabilities to find work
in the states sector. It provides a 100% salary subsidy for the first year of employment and 50% of the second
year, and funding to meet adaptive technology assistance costs;
2. The Job Support grants and subsidies program that covers additional workplace modification costs such as
equipment, mentoring, job coaching, and physical support among many things (for those with ill health or a
disability that is likely to last more than 6 months);
3. The Disability Innovation Fund which makes $500 000 available for innovative technologies that will assist
disabled persons in getting to work;
4. The Invalid’s Benefit for permanently disabled persons, a temporary Sickness Benefit for those working
reduced hours due to disabilities, a Disability Allowance providing non-taxable, supplementary assistance to
those with ongoing disabilities (A Child Disability Allowance is also available for principal caregivers of children
with serious disabilities);
5. The Self-Support and Training Support program, which provides grants to assist those wishing to overcome
barriers to employment, training and further education. This provides up to $5200 in grant dollars to meet costs
of disability with self-employment and training support which provides grants up to $15 600.75
Recently, the government passed the Public Health and Disability Amendment Bill, No 2, which caps payments
for family carers at 40 hours per week and prevents spouses from collecting career benefits.76 Significant public
backlash, including dissidence from the Law Society which threatened to voice its discontent with the United
Nations, demonstrates New Zealanders’ commitment to upholding their disability rights scheme. Their scheme is
guided by the notion of fostering credibility and financial support, making it one of the strongest in the world.
AUSTRALIA
Largely supported by the administration of former Prime Minister Julia Guillard, the Australian model for disability
rights has many parallels to the nexus between policies and legislative initiatives in New Zealand.
In Australia, the Federal Disability Discrimination Act, 1992 (DDA) defines a disability as a:
t Total or partial loss of the person’s bodily or mental functions
t Total or partial loss of a part of the body
t The presence of organisms causing disease or illness
t The presence in the body of organisms capable of causing disease or illness
t Malfunction, malformation or disfigurement of a part of the person’s body
t A disorder or malfunction resulting in the person learning differently from one without
t A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment 77
73
Ibid at “Part 4: Other publicly-owned health and disability organizations.”
74
Ibid at s 59A.
75
List of 5 other “frameworks” extracted from New Zealand Submission to the Office of the High Commissioner for Human Rights, United Nations. See Appendix G.
76
New Zealand Parliament. New Zealand Public Health and Disability Amendment Bill (No 2). Online:
<http://www.parliament.nz/en-NZ/PB/Legislation/Bills/6/d/f/00DBHOH_BILL12227_1-New-Zealand-PublicHealth-and-Disability-Amendment.htm>.
77
Australian Government (ComLaw). Disability Discrimination Act 1992, Part I, Section 2. Online: <http://
29
Moreover, according to the definition, a disability can be present, previously existing, may exist in the future, be
imputed, or exist as a symptom or manifestation of a disability. Arguably, this definition is broader than New
Zealand’s in the sense that even the presence of an organism in one’s body can result in one being deemed to have a
disability. Key words such as presence, malfunction, disorder, and ‘total’ or ‘partial’ loss cover a wide array of medical
impairments that may inhibit one’s daily activities. Such a wide range in scope covers a larger quantity of people
protected by the DDA and represents an expansive model of care.
Australia’s disability care model includes a variety of services such as hotlines for disabled persons, support for
caregivers, information for parents with children that have disabilities, and a financial assistance program through
the Disability Services Act, 1986 which provides grants for employment and advocacy services. The general principles
of criminal responsibility in the Criminal Code, 1995 of Australia on a federal level apply to offenses against the
Disability Services Act. This interplay represents a holistic approach to using legislation as a gateway for opportunities
for disabled persons, while using penal law to ensure that the provisions enabling such services are not contravened.
Similar to New Zealand, it is also home to a National Disability Strategy. Established in 2010, the strategy provides
for a ten-year policy framework representing various commitments by government, and industry stakeholders. The
strategy is, in effect, the promise and delivery of the Labour Government prior to its election to office in 2010. It is
also part of a national consultation with over 2500 stakeholders who contributed to the following priorities:
1. Inclusive and accessible communities;
2. Rights protection, justice and legislation including statutory protections like anti-discrimination laws,
complaints mechanisms, etc.;
3. Economic security;
4. Personal and community support;
5. Learning and skills;
6. Health and well-being.78
As part of this strategy, the federal government pledged $11 million in funding for various rollout efforts.
With respect to discrimination, the advent of the DDA made it illegal to discriminate against a person in the areas
of employment, education, access to premises used by the public, the provisioning of goods, services and facilities,
accommodations, purchasing of land, athletics, and the administration of government programs along with activities
provided by clubs and associations.79 This legislation can be likened with Canada’s federal Human Rights Act which
also prohibits discrimination in all of these areas.
Part 2 of the DDA outlines exceptions for unjustifiable hardship that do not render discrimination against
persons with disabilities unlawful. It also grants the Minister the ability to make available, by way of a legislative
instrument, disability standards dealing with reasonable adjustments, strategies and programs to prevent harassment,
unjustifiable hardship, etc.80 Deviation from these standards is deemed unlawful.
In the Criminal Code, 1899 of Queensland, a province of Australia, (which is nearly identical to the criminal code
in the northern territory and western province), section 216 criminalizes abusive actions against persons of an
www.comlaw.gov.au/Details/C2012C00110>.
78
Australian Government. Department of Families, Housing, Community Services and Indigenous Affairs.
Online: <http://www.fahcsia.gov.au/our-responsibilities/disability-and-carers/program-services/governmentinternational/national-disability-strategy>.
79
Australian Human Rights Commission. “DDA guide: What areas of life does the DDA cover?” Online:
<http://www.humanrights.gov.au/dda-guide-what-areas-life-does-dda-cover>.
80
Australian Government (ComLaw). Disability Discrimination Act, 1992, Division 2A, Section 31. Online:
<http://www.comlaw.gov.au/Details/C2013C00022/Html/Text#_Toc345412401>.
30
‘impaired mind’.
For example, any unlawful and indecent deals, unlawful procuring, or willful exposure to an indecent act is
considered criminal behavior and is subject to imprisonment for ten years.81
In the New South Wales’ Crimes Act, 1990, there is a maximum incarceration penalty of 10 years for any person
caring for someone with a cognitive impairment, whether generally or at the time of care, had sexual intercourse
with that person, and consent is not a defense.82
To add, Australia hosts a Bureau of Statistics that, every three years, gathers data about persons with disabilities over
the age of 60, along with their carers.83 Information is also gathered by means of the Disability Services Census
which targets the collection of data pertaining to employment services, advocacy services, and respite services for
carers, among many other details.84
In recent affairs, the federal government introduced and passed a national disability insurance scheme. The
legislation will increase the Medicare levy from 1.5 to 2% of taxable income from July 1, 2014, with all monies to be
used for funding Disability Care Australia.85 Many stakeholders lauded the approach as they learned that the money
invested will be placed in a special fund to assist in rolling out the disability care scheme estimated at 8 billion
dollars and to which the government will invest approximately $14.3 billion.86 The legislation opens a lifetime
financial assistance scheme which will support over 400 000 Australians and focus on persons with permanent
disabilities.
UNITED STATES
It is argued that the United States prompted the global disability rights movement to produce an international
Convention given the inception of the Americans with Disabilities Act, 1990, which largely reflects a communitycentric, social model towards persons with disabilities. Ironically, it was not until 2009 that the US agreed to sign
the UNCRD.87
To date, there are two sources of disability law in the US. The first is the Rehabilitation Act, 1973 (RA) and the
second is the ADA. Most importantly, section 504 of the RA indicates that no otherwise qualified individual with
a disability may be subject to discrimination, excluded from, or denied the benefits of, any program or activity
receiving federal financial assistance.88
Complementary in its purpose, the ADA prohibits discrimination in places of public accommodation and
commercial facilities, in the context of employment, and imposes obligations to remove physical barriers from
81
Queensland Consolidated Acts (AustLII). Criminal Code, 1899. Section 216. Online: <http://www.austlii.
edu.au/au/legis/qld/consol_act/cc189994/s216.html>.
82
New South Wales Consolidated Acts. Crimes Act 1990, Section 66F. Online: <http://www.austlii.edu.au/
au/legis/qld/consol_act/cc189994/s216.html>.
83
Australian Bureau of Statistics,“Disability, Ageing and Carers”. Online: <http://www.abs.gov.au/AUSSTATS/abs@.nsf/DSSbyCollectionid/4926CFF764B65A25CA256BD000288447?opendocument>.
84
Australian Government. Disability Services Census 2013. Online: <http://www.fahcsia.gov.au/our-responsibilities/disability-and-carers/program-services/for-service-providers/disability-services-census-2013>.
85
Disability Care Australia. Online: <http://www.ndis.gov.au>.
86
Ibid.
87
Michael Stein, Janet Lord, & Penelope J.S. Stein, “The Law and Politics of US Participation in the UN
Convention on the Rights of Persons with Disabilities” (2010) European Yearbook of Disability Law Vol 2. Eds.
Gerald Quinn & Lisa Waddington at 29 [Stein].
88
Mark Weber. Understanding Disability Law (2012). 2nd Ed. Lexis Nexis [Weber].
31
existing facilities and design new facilities with proper access. The statute also requires employers in the private sector
to justify job requirements and evaluation criteria for every employee and shifts the burden of proof to employers to
show a rational basis for the way work is organized.89
Despite civil rights protections, the ADA lacks equality measures making equal opportunity inaccessible. In other
words, it is substantiated on the notion of formal equality rather than substantive quality.90 That is, the protective
measures are not designed to accommodate different needs, and instead provide equal opportunities to all, despite
the disability.
In 2009, the ADA Amendments Act (ADAAA) came into force. It does not provide funding for services or
accommodations.91 It did, however, alter the definition of disability, making it less restrictive:
1. A physical or mental impairment that substantially limits one or more of the major life activities of such
individual;
2. A record of such an impairment; or,
3. Being regarded as having such an impairment.92
Prior to this, the benefits of any mitigating measures, such as medication used by an individual, had to be taken into
account when determining whether a person had a substantially limiting impairment – this is no longer the case.93
More specifically, the ADAA requires that employers ensure reasonable accommodation is provided to employees
with disabilities unless the employers can establish that accommodation would result in undue hardship on the
operation of the business or otherwise.94 Plaintiffs have recourse to a host of remedies with regard to employment
claims by means of the Civil Rights Act, 1991. For example, punitive or compensatory damages, back-pay,
injunctions, equitable relief, and attorney fees may be made available.95
Some of the regulations issued by the Equal Employment Opportunity Commission (EEOC) offer interpretive
guidance for the provisions of the ADAAA. The commission is responsible for the enforcement of title 1 of the ADA,
as amended, and is expressly granted the authority to amend its regulations.96
Among many things, with respect to the ADAA, the commission:
1. Provides that major life activities include major bodily functions (this expands the number of persons falling
89
Henry Perritt, Americans with Disabilities Act Handbook. Section 101. 4th Ed. (New York: 2003) at 3 [Weber].
90
Stein, supra note 87 at 33.
91
National Centre for Learning Disabilities. Americans with Disabilities Act Amendments. Online: <http://
www.ncld.org/disability-advocacy/learn-ld-laws/adaaa-section-504/americans-disabilities-act-amendments-actadaaa>.
92
Title 29, Code of Federal Regulations. Chapter XIV. 1630.2 Definitions. Online: <http://www.law.cornell.
edu/cfr/text/29/1630.2>. See also http://www.ncld.org/disability-advocacy/learn-ld-laws/adaaa-section-504/
americans-disabilities-act-amendments-act-adaaa>.
93
Federal Register. Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, Amended. Online: <https://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-toimplement-the-equal-employment-provisions-of-the-americans-with-disabilities-act-as#h-11>.
94
Weber, supra note 90 at 62.
95
Ibid at 92.
96
Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act, as
amended. Online: <https://www.federalregister.gov/articles/2011/03/25/2011-6056/regulations-to-implementthe-equal-employment-provisions-of-the-americans-with-disabilities-act-as#h-10>.
32
2.
3.
4.
5.
6.
under the definition of disability including those with cancer, multiple sclerosis, muscular dystrophy, diabetes,
cerebral palsy, HIV infection and autism);
Provides that the immune and circulatory systems are included in the definition of major bodily function;
In responding to the discrepancy between the definition of impairment and the list of major bodily functions,
highlights that the list of bodily systems and mental impairments are non-exhaustive;
Emphasizes that the list of major life activities are non-exhaustive;
Clarifies that the meaning of a disability which “substantially limits” includes something that is “ample”,
“considerable”, “more than moderately restricts”, “discernable degree of difficulty”, “makes achievement of the
activity difficult” and “causes a material difference from the ordinary processes by which most people in the
general population perform the major life activity;”
Does not provide for a six-month durational minimum to demonstrate a disability.97
Some scholars have opined on the comprehensiveness of the legal framework for persons with disabilities through
the lens of the constitution. There is an argument that the resources available reflect the spirit of the Fourteenth
Amendment containing a protection clause, which states that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the state wherein they reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person
of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.98 [emphasis added]
The American model is laudable for its broad measures of inclusion, which permeate the matrix of services provided
to persons with disabilities. Much of its success is attributable to the far-reaching definition its legislation ascribes
to the term “disability”. There is no question that the legal safeguards in place, both within the ADAA and the Civil
Rights Act, are the products of decades of activism spurred by American citizens. The disability movement began long
before the institution of this legislation when Americans began to avidly challenge societal barriers - fighting against
exclusion, and for the advancement of independent, inclusive living. The availability of services across sectors
including, but not limited to employment, health, and education, is unique, providing an exemplary model for
nations considering draft legislation on disability rights, or reforms to social services.
The US model served as a blueprint for the PCPCC in discussions surrounding its fifth recommendation.
Establishing a federal disability statute in Canada would not only provide for a more specific legislative mechanism
compiling disability rights laws into a comprehensive document, but it would also provide for a clear interpretation
of Parliament’s legislative intent with respect to this area of law, rather than leaving it to the judiciary to decide what
the state of disability rights are in the context of legal/human rights disputes.
RECOMMENDATION 5:
That a Federal Disability Act be legislated in the House of Commons with regard for
concurring jurisdictional areas between the provinces and the federal government, specifically
in the area of pensions.
An act of this nature would serve not to undermine, but rather enhance current regimes in place for the rights
97
Ibid.
98
Legal Information Institute. Cornell University Law School. Fourteenth Amendment. Online: <http://
www.law.cornell.edu/constitution/amendmentxiv>.
33
of persons with disabilities in human rights legislation both federally and provincially. It should also accord with
Canada’s obligations under the UNCRD. Numerous organizations, including the Council of Canadians with
Disabilities, a reputed leader advocating for disability rights, have called for such legislation. Said legislation
should include a statutory review period so as to ensure its efficacy in accordance with changing trends concerning
Canadians with disabilities. It should create a framework prohibiting discrimination for all services provided at
the federal level. Pre-consultations with disability stakeholders are required to ensure that the act addresses the
inadequacies of the fabric of resources currently offered by the government.
UNITED KINGDOM
Figures suggest that approximately 40% of unemployed adults under the age of 65 in the UK are disabled and that
disabled persons make up more than a third of those who have no formal qualifications whatsoever.99 In addition to
this staggering rate, a report from the Chair of the Disability Rights Commission demonstrates that in 2007, 37% of
people in receipt of the UK disability living allowance had never used a computer.100
The UK is home to a range of similar legislative schemes that exist in other Commonwealth countries. Its schemes
focus on the accessibility of information disseminated to disabled persons, social welfare, and anti-discrimination
legislative tools.
Among the various protections within the disability rights framework is the Equality Act, 2010 (EA), which
replaced the Disability Discrimination Act of 1995, along with the Disability Rights Commission, which safeguard
the interests of persons with disabilities under Chapter 1 of the Act. It covers protection from discrimination with
respect to the provision of goods, facilities and services, exercise of public functions, premises, work, education and
associations.101
The Act defines a disability as:
1. Physical or mental impairment and;
2. The impairment has a substantial and long term adverse effect on the plaintiff’s ability to carry out normal, dayto-day activities102
The EA remains largely the same as its legislative predecessor, and is applicable to service and education providers,
employers and government/public authorities administering various services. It makes it unlawful to refuse services
to a disabled person, relegate them to a sub-standard service, or charge them additional fees for a service.103
Similar to many other equality-rights based statutes, the EA invokes a statutory duty to take “reasonable steps to
remove disadvantages that would affect a disabled person,”104 which is akin to the ‘reasonable accommodation’
provisions popular in Commonwealth countries. Some critique this provision by indicating that employers are under
no obligation to remove barriers, but rather, must react to accommodating persons with disabilities.105 The DDA also
99
Anna Lawson, “Challenging Disabling Barriers to Information and Communication Technology in the
Information Society” (2010) European Yearbook of Disability Law. Vol 2. Eds. Gerald Quinn & Lisa Waddington
at 132 [Lawson].
100
Ibid.
101
Office for Disability Issues. Equality Act 2010: Guidance. Accessible online at: <http://odi.dwp.gov.uk/
docs/wor/new/ea-guide.pdf>.
102
Equality Act, 2010. Online: <http://www.legislation.gov.uk/ukpga/2010/15/pdfs/ukpga_20100015_
en.pdf>.
103
Lawson, supra note 100 at 135.
104
Disability Discrimination Act, s. 4A (formerly), currently s. 20 of the Equality Act, 2010.
105
Lawson, supra note 100 at 137.
34
requires public authorities to deliver services under a disability equality duty.106 Individuals receiving services from
the government may enforce their rights by means of judicial recourse.
Moreover, the Equality and Human Rights Commission has the jurisdiction to assess compliance within the delivery
of public services, issue compliance notices and request them from the courts, and suggest recommendations
for approval.107 If an authority does not abide by a court order sought by the Commission, it could be found in
contempt of court, causing serious ramifications for its public image and for the government.108
A corollary to the existing framework is the Office for Disability Issues, which is responsible for disseminating
information to the general population. Spearheaded by the Department for Work and Pensions, the office is also
responsible for gathering statistics pertinent to persons with disabilities.109
Other measures within the social funding realm along with market regulation addressing the rights of persons with
disabilities include:
1. A provision in the Communications Act, 2003 creating a duty encouraging industry developers to develop an
apparatus that is user-friendly for a range of individuals including those with disabilities, which has not been
proven an effective tool thus far.110
2. An Access to Work Scheme by which the government contributes to the costs of adjustments required for
disabled persons to be in and remain employed within certain fields.111
3. The Special Education Needs Framework, funded by local authorities, which assists students in covering
costs for adjustments necessary within educational institutions given that schools are not subject to the duty to
accommodate.112
CROSS-COMPARISONS BETWEEN THE COMMONWEALTH COUNTRIES
AND THE UNITED STATES
An in-depth analysis of the countries listed above highlights a common underlying theme with respect to the types
of disability rights frameworks that exist, how they are implemented, and whether they have proven themselves
worthwhile endeavours.
The first of the commonalities lies in strong statistical gathering resources through Commissioners or offices
specifically dedicated to studying the needs and services required by persons with disabilities. The strength of
statistical information serves as corroborating evidence of strong government outreach, particularly in countries with
significant funding programs targeted towards individuals with needs varying from employment to education. The
calibre of statistical information is a key commitment embedded within the UNCRD and one which appears to be
integral to a developing disability rights dialogue and a policy-changing dynamic. Implementation of this objective is
indicative of high regard for commitments made on the international playing field, as each country indicated above
has ratified the UNCRD.
106
Disability Discrimination Act, s 494A(d).
107
Lawson, supra note 100 at 141.
108
Carole Gooding, “Promoting Equality?” (2009) European Yearbook of Disability Law. Vol 1. Eds. Gerald
Quinn & Lisa Waddington at 37.
109
Office for Disability Issues. Disabled People and Legislation. Online: <https://www.gov.uk/government/
organisations/office-for-disability-issues>.
110
Lawson, supra note 100 at 144.
111
Ibid at 145.
112
Ibid.
35
Information dissemination is equally as significant. Many countries, specifically the United Kingdom and Australia,
have made an effort to situate online tools in appropriate fashions to ensure accessibility, a foundational principle
embedded in the UNCRD. The dissemination of information pertaining to services available contributes to a more
informed public and an equally informed government in terms of where services may suffer from weaknesses.
Another commonality is clear in efforts made by federal governments to consult with organizations specializing in
disability rights-based advocacy. For some countries, cooperation with these organizations has yielded reforms which
broadened the definition of “disability” and consequently, the implementation of social programming.
Finally, funding streams available in countries such as New Zealand, and Australia demonstrate significant financial
support for persons with disabilities in the areas of employment, and education. Given the weight of the 2008
recession and the flux of the global market, federal funding is not an entirely feasible resource for each country.
There are also constitutional issues that arise with funding measures, particularly with countries that provide
jurisdiction to their sub-national units in areas such as human resources, skills development and employment.
Perhaps New Zealand’s impressive portfolio in this regard is linked to its political status as a federal, unitary state
without sub-national units, whereas the remaining countries have provinces, territories and states to accommodate.
PRACTICAL SOCIAL PROGRAMS AND THEIR EFFECT:
UNITED KINGDOM, AUSTRALIA, NEW ZEALAND
AND THE UNITED STATES
This part probes further into various intricacies of social programming designed to address the economic and social
plight of disabled persons that resulted by way of enabling statutes in the relevant jurisdictions.
Some statistics provide guidance on the strength of social programming animated by legislation, while others simply
refer to funding efforts. The lack of statistical data available is likely attributable to the fact that governments focus
on reporting about variables specific to its liking.
Beginning with the United Kingdom, most noteworthy is the Access to Work Programme. Established in 1994,
the program provides practical advice to persons with disabilities along with their employers and effectively
complements the provisions of the Equality Act, 2010. Access to work provides key institutional resources such as
equipment for a disabled person at work, a support worker, communications support, and travel costs associated
with one’s commute to work.
Between 2011-2012, Access to Work supported over 30,000 persons with disabilities, allocating approximately
3,100 £ to each individual in the program. Fourty-five percent of claimants indicated that they would be out of
work absent the assistance from Access to Work. In March 2012, the United Kingdom announced a $15 million
investment to the program, increasing the number of beneficiaries by 8,000 persons.113
Additionally, the UK provides an “individual placement and support program” (IPS) which embeds employment
specialists within clinical treatment centres so that clinical treatment and employment support are both integrated
within one another, and operating in tandem, rather than in isolation from one another. It is worth remarking that
through this program, an average of 61% of persons with psychosocial disabilities can successfully gain competitive
employment offered, the drop out rates are fewer, and the majority of people are able to retrieve part time jobs, work
more and earn more.114
113
International Study on the Implementation of the UN Convention on the Rights of Persons with
Disabilities: Zero Project Report 2013 at 223. Online: <http://www.zeroproject.org/wp-content/uploads/2013/02/
Zero-project-2013-at-a-glance.pdf>.
114
Ibid at 225.
36
Perhaps these programs are insightful indicators as to why only 9% of disabled persons of working age have never
held a job, and the employment rate for the disabled is 46% while the employment rate for those who are not
disabled was at 76%, according to the most recent statistics.115
Comparatively, in the United States, approximately 32.6% of the disabled population is employed and 18.8% work
full-time, whereas 72.8% of persons without a disability are employed and 49.1% work full-time.116 Moreover, the
labour force participation rate for persons with disabilities aged 16 or more is calculated at approximately 20.6%.
Notwithstanding the striking disparity between the employment rate for disabled persons in both the UK and the
US, the supportive housing for persons with disabilities program (SHDP), disability insurance scheme (DIS) and
work incentives planning and assistance program (WIPAP), are all key products of legislative enactments with
mandates that provide social benefits for the disabled.
The SHDP is a derivation of a legislative amendment made to the US Department of Housing and Urban
Development scheme (DHUD). It was authorized to triple the number of integrated housing units available
through Section 811 of the Department’s mandate without increasing the funding appropriated. In 2011, the
DHUD announced $749 million in housing funds for low-income persons with disabilities, signifying a renewed
effort to ensure affordable housing for those in need.
The DIS scheme, despite its potential for growth, is not as widely revered for its utility. Between 2006 and 2008,
for example, the Social Security Administration approved only 40% of applications submitted for DIS benefits,
of which only 70-80% did not go on to work in jobs with annual earnings above the substantial gainful activity
level.117 There is much disaccord with the disability insurance scheme, its efficacy, method of application, screening
and reforms. A major critique of the replacement program is premised on the fact that only fifty percent of lifetime
earnings that were accrued before the onset of one’s disability are provided to a successful applicant over time with
some variance depending on income threshold.118
Finally, WIPAP is a program that supports those working or attempting to work by providing information on work
incentives, benefits, services available to help achieve employment goals.119 In essence, the program was designed
to educate beneficiaries about various work incentives in addition to the effects of increased benefits and earnings.
Nonetheless, it is unclear as to whether the program is reaping the benefits the government intended for it to sew
insofar as there is little to no data indicating whether beneficiaries are satisfied with the current level of involvement
or prefer more sustained support.120
The range of statistical data compiled in Australia and New Zealand is distinguished by its volume compared to that
of the United Kingdom and the United States. In particular, Australia and New Zealand place a higher emphasis on
statistical gathering as part of their mandates under the UNCRD. Various Ministerial departments, including the
bureaus for statistics, focus on the effectiveness of disability-related legislation in accompaniment with data compiled
115
Department for Work & Pensions. “Fulfilling Potential – Making it Happen” at 39. Online: <http://odi.
dwp.gov.uk/docs/fulfilling-potential/making-it-happen.pdf>.
116
Annual Disability Statistics Compendium. Online: <http://disabilitycompendium.org/compendiumstatistics>.
117
Shawn Fremstad & Rebecca Vallas, “1 Center for American Progress - The Facts on Social Security Disability Insurance and Supplemental Security Income for Workers with Disabilities” (2013) Centre for American
Progress at 3 [Fremstad & Vallas].
118
See Table 1: Disability Insurance benefits by lifetime average earnings (for workers who became eligible
in 2011): Ibid at 108.
119
Jody Schimmel, Bonnie O’Day, & Allison Roche. “The Work Incentives Planning and Assistance
Program” (2012) Centre for Studying Disability Policy 12.02 at 3.
120
Ibid at 4.
37
from various household surveys. Despite the fact that there is limited data on the most recent legislative/funding
initiatives, such as those implemented between 2011 and the present day, there is a range of statistical analysis
available on the needs of persons with disabilities prior to 2011.
In 2003, the Australian Human Rights Commission reported that 53.2% of persons with disabilities participated
in the labour force as compared to 80.6% of those without a disability.121 For those reporting disabilities, the most
commonly reported need is property maintenance for their homes, household chores and mobility. The Australian
Bureau of Statistics reports the following with respect to data gathered between 2003 and 2009:
1. An overall decrease in the receipt of assistance from the Australian government;
2. Decreases in assistance from the government to persons with disabilities were more prevalent among those with
cognitive or emotional tasks, for persons with disabilities whose jobs involved paperwork, transportation and
property maintenance;
3. There was a marginally greater proportion of people with disabilities reporting that their need for assistance had
been fully met in 2009 compared to 2003;
4. Private commercial agencies provided more assistance with emotional tasks (56%), health care (55%) and
property maintenance (58%) (Note here that the Australian Bureau of Statistics does not disclose what
constitutes a private commercial organization in this reported statistic);
5. Those with more severe forms of disability were more likely to report needs being fully met whereas those with
mild-core activity limitation reported significantly lower rates of having needs met.122
In New Zealand, reports have also indicated positive results for various programs and efforts to ameliorate the status
of persons with disabilities. For example, a 2008/2009 report details that access to information on government
web pages was enhanced to make text available in formatting accessible by persons with disabilities.123 Additionally,
government staff were successfully targeted to be part of disability awareness training.124 Improvements have
also been made to government agencies and offices in the areas of online information, physical accessibility of
government buildings, reception areas, clear and accessible pathways, obvious and visible signs, accessible parking
entrances, and non-discriminatory human resources practices.125
It is worth noting that the broad matrix of financial and social support for persons with physical disabilities in
New Zealand also extends to those with intellectual disabilities. For example, the New Zealand Ministry of Health
reported that persons with intellectual disabilities received $3,001 per person in government-funded assistance,
which is nearly three times higher than the same services received by people without intellectual disabilities at
approximately $1,028.126
Notwithstanding these enlightening developments, housing is an area of government assistance that requires
further infrastructure and developmental assistance. There is a need for accessible housing for both the young and
121
Australian Human Rights Commission. National Inquiry into Employment and Disability: Issues Paper
1. Online: <http://www.humanrights.gov.au/publications/national-inquiry-employment-and-disability-issuespaper-1>.
122
Ibid.
123
See Statistics New Zealand: New Zealand Disability Strategy Implementation Work Plan (July 1 2005 –
June 30 2006). Online: <http://www.health.govt.nz/publication/health-indicators-new-zealanders-intellectualdisability> at 8.
124
Ibid at 14
125
Office for Disability Issues. Statistics New Zealand. Online: <http://www.odi.govt.nz/nzds/workplans/2007-08/dpt-statistics.html>.
126
New Zealand Ministry of Health. Health Indicators for New Zealanders with Intellectual Disability.
Accessible online at: <http://www.health.govt.nz/publication/health-indicators-new-zealanders-intellectualdisability>.
38
the old enduring mobility issues – an issue that is not met with sufficient resources in New Zealand’s housing
stock according to the Centre for Housing Research.127 The Centre has also reported that disabled persons and the
government spend lofty amounts on housing modifications, while building and renovating housing is a stronger
cost-effective solution for both the state and the individual. As such, the report concludes that government funding
has failed to recognize the welfare needs of persons with disabilities, particularly in terms of housing that reduces
barriers for persons with disabilities to contribute to their daily living.
It is axiomatic that each of these four countries has implemented numerous institutional social welfare schemes in an
effort to reduce the impediments that occupy the paths of the disabled economically, socially, and personally. What
remains unclear, however, are the true effects of these national legislative frameworks and their funded programming
counterparts. The penumbra of uncertainty surrounding the effects of disability law is largely due to the fact that
many of the foregoing schemes have only been recently introduced, amended or implemented. As such, their effects
are not yet identifiable through statistical vessels such as census samples which only occur within the span of 2-5
years for the countries studied, depending on the variables gathered. Moreover, institutional programs require several
years before their efficiency can fully be identified.
With these elements in mind, we must remain vigilant of the developments emerging about information-gathering
and publication from each of these countries. Particularly noteworthy is Australia, given the Guillard government’s
financial investments in disability programming between 2012 and 2013, which will likely produce meaningful
statistics in the first five year cycle following the implementation of legislation.
127
Centre for Housing Research. “Housing and Disability: Future Proofing New Zealand’s Housing Stock for
an Inclusive Society” (May 2007) at p 2. Online: <http://www.chranz.co.nz/pdfs/housing-and-disability-futureproofing-new-zealands-housing-stock-for-an-inclusive-society-bulletin.pdf>.
39
Chapter V:
Disability, Canadian Law and Jurisprudence,
A Glimpse into the Current State of Affairs
“Disability, as a prohibited ground, differs from other enumerated grounds such as race or sex, because there is no
individual variation with respect to these grounds. Disability means vastly different things, depending upon the individual
and the context.”
- The Honourable Justice Sopinka, Eaton v Brant [1997] 1 SCR 241, 1996 CarswellOnt 5035 at 4.
40
40
The Canadian model for disability-rights laws is coloured largely by the Charter of Rights and Freedoms in section
15 which guarantees that “every individual is equal before and under the law with a right to protection without
discrimination based on a series of enumerated grounds, one of which includes mental or physical disabilities.”128
It is also influenced by comprehensive legislative regimes in the form of provincial human rights codes, and the
Canadian Human Rights Act, all of which protect Canadian citizens from discrimination due to a disability. The Act
highlights that disability is a ground of discrimination which impacts:
1)
2)
3)
4)
5)
Accommodations and services available to the public;
Furnishing of commercial and residential accommodations;
Employment, including hiring, termination, wages and advertisements for the use in the hiring process;
Membership and services offered by unions and employer organizations;
The use of publications, notices and advertisements.129
Canada’s first human rights statute was the Saskatchewan Bill of Rights Act, 1947. Following its enactment, Canadian
provinces began to follow suit, and eventually a federal human rights act was enacted in 1977, some 30 years later.
Eventually, discrimination on the grounds of one’s disability was prohibited.
In Canada, the debate with respect to equality rights is centered on the dichotomy between substantive and
formal equality. Substantive equality is the idea that resources are allotted by government for the people in varying
respects depending on their needs, thus providing equal opportunity. Formal equality provides for assistance and
resources in a way such that individuals receive equal support in terms of resources, despite their needs, leaving some
disadvantaged given impeding psychological or physiological impediments. Canadian jurisprudence finds itself
sitting along the substantive law axis.
The substantive law model is a derivation of the makeup of our Charter, particularly with respect to s. 15. Ironically,
Canada was considering excluding persons with disabilities from equality rights protection the year the UN
dedicated its working theme to equality and full participation for persons with disabilities.130
The substantive model was arguably a linchpin to the court’s rationale in Andrews v Law Society of British
Columbia,131 one of the leading cases on equality rights from the Supreme Court of Canada. In Andrews, the Court
concluded that equality is an elusive, comparative and highly contextual concept which does not necessarily denote
sameness of treatment.132 The Court ultimately rejected the formal equality model for a substantive one, making
equality of results with respect to opportunity a blueprint for Canada. It also confirmed that discrimination can
be executed directly or indirectly. It established a framework from which to evaluate all equality-rights cases by
proposing the following test which asks: 1) whether the impugned law creates a distinction based on enumerated
or analogous grounds; and, 2) whether the distinction creates a disadvantage by perpetuating prejudice or
stereotyping.133
Canada’s decision to enshrine the prohibition against discrimination towards persons with disabilities in the
constitution is an international example from which others can learn. The Charter is lauded as one of the most
comprehensive civil liberties protection initiatives in the world, and has been used as a framework for many
countries developing their rights-based agendas. Section 15 of the Charter enumerating both physical and
psychological disabilities as protective grounds is foundational, but there remains much more to be modified before
128
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, s. 15, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11.
129
See sections 5- 14 of the Canadian Human Rights Act, RSC, 1985, C H-6.
130
Lepofsky, supra note 11 at 8.
131
[1989] 1 SCR 143 [Andrews].
132
Ibid at para 8.
133
Ibid.
41
the disability-rights model can be commended both in practice and on paper.
SOCIAL PROGRAMMING FOR CANADIANS WITH DISABILITIES
Human Resources and Skills Development Canada offers a range of social benefits for adults and children with
disabilities. Some have proven to be more effective than others, depending on their administration and financial
support levels. With a newly-minted Minister in this department since the Cabinet shuffle in July 2013, it is possible
that various outlets of the disability support schemes may be altered.
Canada was the first in the world to offer a Registered Disability Savings Plan (RDSP) to enhance the financial
securities of Canadians with disabilities. Introduced in the March 2007 by the Harper government, the program is a
savings plan designed to help parents and others save for the long term financial secruity of a person who is eligible
for the disability tax credit.. Contributions to the plan are not tax-deductible, and can be made until the end of the
year in which the beneficiary turns 59.134
An additional option for persons with disabilities is the Canada Pension Plan Disability Benefit. It is provided
monthly to those who contributed regularly to their CPP but were unable to work at any job on a regular basis
due to a disability.135 The definition of disability under the Canada pension scheme requires that a disability is
both “severe”, “prolonged” and must prevent one from working at any job on a regular basis.136 Canadians must
apply for the benefit to replace their retirement pension before turning 65 or before their retirement pension
begins. Compared to the definitions put forth by the Australian, New Zealand, American and UK governments,
the Canadian definition for CPP disability benefits allows a narrower definition of disabilities that are classified as
“severe” and “prolonged”. The Canada Pension Plan, RSC, 1985, c C-8 elaborates on these definitions and indicates
the following qualifications for disabilities:
Severe meaning a person that is incapable of regularly pursuing any substantially gainful occupation.
Incapable meaning not able or fit to pursue any substantial occupation as a result of the disability.
Regularly meaning the capacity to work is sustainable.
Substantially gainful occupation meaning work that is productive and profitable.
Prolonged meaning that the disability will prevent the individual from going back to work in the next 12
months or is likely to result in death.137
Given that there is no uniform definition for disability in Canada, this definition is particularly troublesome for
those with disabilities that may not be considered as severe and thus are unable to qualify for the benefit. Many
disabilities do not inhibit work for a full year, nor do they result in death. These outcomes are not mutually exclusive
and as such, weaken aspects of the Canada Pension Plan legislation.
The narrow focus elucidated in this definition is also reflected in Canada Student Loans and Grants available for
134
Canada Revenue Agency, “Registered disability savings plan (RDSP)”, online: <http://www.cra-arc.gc.ca/
tx/ndvdls/tpcs/rdsp-reei/menu-eng.html>.
135
Government of Canada. Disability Benefit. Online: < http://www.servicecanada.gc.ca/eng/services/pensions/cpp/disability/benefit/index.shtml>.
136
Ibid.
137
Government of Canada. “What we mean by “disability””. Online: <http://www.servicecanada.gc.ca/eng/
isp/cpp/severe.shtml>.
42
persons with disabilities. For example, students eligible for such grants must maintain satisfactory grades and be
permanently disabled, which requires a
“functional limitation caused by a physical or mental impairment that restricts the ability of a person to
perform the daily activities necessary to participate in studies at a post-secondary school level or the labour
force and is expected to remain with the person for the person’s expected life.”138
In addition, parents or guardians of children under the age of 18 with disabilities may be eligible to collect a
monthly supplement through the Child Disability Benefit (CDB). The CDB is only available for children with a
“severe and prolonged impairment in physical or mental functions” and in cases where the disability lasted or is
expected to last for a continuous period of 12 months. As it stands, children who use assistive hearing technology
and/or have already learned to use a spoken language are ineligible for this benefit. A mandatory disability tax credit
certificate must also be completed by a certified practitioner and sent to the Canada Revenue Agency for assessment
prior to the issuance of credits.
Having analyzed the CDB scheme, the PCPCC recommends allowing those children who are permanently disabled,
using assistive hearing technologies, and who can speak a language to qualify for the CDB. Presently, the CDB only
grants assistance to individuals considered “markedly restricted”, all or substantially all of the time in their ability
to hear. This means that patients must rely completely on lip reading or sign language to understand a spoken
conversation at least 90% of the time in order to be eligible for the benefit. This excludes children with hearing
devices who are still disadvantaged by their impediment.139
Redefining the eligibility criteria will ensure that families with children that have permanent disabilities receive
financial relief to offset the high costs of hearing technologies.
RECOMMENDATION 4:
That the requirements of the Child Disability Benefit (CDB) be redefined to include
financial support for children who are not markedly restricted in speaking or hearing.
Currently, the Canada Revenue Agency indicates that an individual must be “markedly restricted”, all or
substantially all of the time, in performing a basic activity of daily living in order to qualify for the disability tax
credit. “Markedly restricted” is defined as being limited in performing a given activity at least 90% of the time even
with therapy or the use of appropriate devices and medication. The related basic activity of daily living is defined as
“hearing so as to understand, in a quiet setting, another person familiar with the individual.”140
Similar to the CDB is the Disability Tax Credit (DTC) which is available for adults with a prolonged, severe
impairment which manifests itself either mentally or physically
Parallel to CTDC is the Disability Tax Credit (DTC) which is available for adults with a prolonged, severe
impairment which manifests itself either mentally or physically. The individual applying must be “markedly
restricted” in his or her ability to perform a basic activity of daily living or “significantly restricted” in the ability
to perform more than one basic activity of daily living; the cumulative effect of significant restrictions markedly
138
Government of Canada. Can Learn. “Definition of permanent disability”. Online: <http://www.canlearn.
ca/eng/main/help/glossary/permanent_disability.shtml>.
139
See Appendix F for detailed eligibility requirements for the CDTC.
140
Canada Revenue Agency. Income Tax Folio. Online: <http://www.craarc.gc.ca/tx/tchncl/ncmtx/fls/s1/f1/
s1-f1-c2-eng.html#p2.7>.
43
restricting one’s ability to perform a basic activity of daily living.141 Arguably, the Income Tax Act provides a
comprehensive overview of which types of activities would result in an individual being markedly restricted. Section
118(4) is of particular interest:
(c) a basic activity of daily living in relation to an individual means
(i) mental functions necessary for everyday life,
(ii) feeding oneself or dressing oneself,
(iii) speaking so as to be understood, in a quiet setting, by
another person familiar with the individual,
(iv) hearing so as to understand, in a quiet setting, another person familiar with the individual,
(v) eliminating (bowel or bladder functions), or
(vi) walking;
(c.1) mental functions necessary for everyday life include
(i) memory,
(ii) problem solving, goal-setting and judgment (taken together) and
(iii) adaptive functioning;
(d) for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall
be considered as a basic activity of daily living; and
(e) feeding oneself does not include
(i) any of the activities of identifying, finding, shopping for or otherwise procuring food, or
(ii) the activity of preparing food to the extent that the time associated with the activity would not have been
necessary in the absence of a dietary restriction or regime; and
(f ) dressing oneself does not include any of the activities of identifying, finding shopping for or otherwise procuring
clothing.142
Additionally, the federal government provides financial support for caregivers, such as family and friends through
the Employment Insurance (EI) scheme. For example, in 2011, the Family Tax Credit was introduced, coming into
effect by 2012.143 The 2011 federal budget also announced the removal of the $10 000 ceiling on expenses that
family caregivers could claim under the Medical Expense Tax Credit.144
In 2012, legislation was passed to create a special 35-week, EI benefit to “provide income support to eligible parents
who are unable to work while providing care or support to a critically ill or injured child.”145 In 2010, legislation was
enacted to extend eligibility for special benefits, including compassionate care benefits to self-employed persons who
voluntarily registered for the EI program.146
BUDGETARY ACTION PLANS FOR CANADIANS WITH DISABILITIES, 2014
In 2013, the Government of Canada announced that a new generation of Labour Market Agreements for Persons
with Disabilities would be implemented to ensure that programming existed for Canadians with disabilities. The
141
Income Tax Act, RSC, 1985, c. 1 (5th Supp), Paragraph 118.4(1)(a)(b) and 118.3(1). Online: <http://lawslois.justice.gc.ca/eng/acts/I-3.3/page-171.html#docCont>.
142
Ibid at s. 118(4).
143
Government of Ontario. “Chapter 4.2: Supporting Families and Communities” Budget 2011 at 125-126.
Online: <http://www.budget.gc.ca/2011/plan/chap4b-eng.html>.
144
Ibid.
145
Employment and Social Development Canada, “Recent Legislative and Temporary Changes to Employment Insurance: Annex 7.1 – Major Changes to the EI Program since 1996/97,” EI Monitoring and Assessment
Report 2012/13. Online: <http://www.esdc.gc.ca/eng/jobs/ei/reports/mar2013/annex7.shtml>.
146
Ibid.
44
funding was channeled largely due to the findings of a report titled “Rethinking Disability in the Private Sector”,
emanating from the Panel on Labour Market Opportunities for Persons with Disabilities. The report concluded
that there are approximately 800 000 working-age Canadians with a disability who are not working even though
their disability does not prevent them from so doing.147 A few elements of the 2014 Budget are noteworthy in this
respect:
t The government remains committed to providing $222 million annually, matched by provinces and territories,
up until 2017, through a new generation of Labour Market Agreements for Persons with Disabilities,148
t The government remains committed to supporting the creation of a Canadian Employers Disability Forum
to drive the employment of disabled persons where business leaders can share their best practices with one
another,149
t The government proposes to connect persons with developmental disabilities with jobs by providing $15 million
over three years, beginning in 2014, to the Ready Willing & Able150 initiative of the Canadian Association for
Community Living.151
t The government maintained a Registered Disability Savings Plan, originally established in 2007. This is a taxassisted savings plan that assists individuals with severe disabilities and their families, save for long-term financial
security,152
t The government acknowledges that it is one of the few remaining employers that does not offer a formal, shortterm disability coverage plan for its employees and alludes to the desire to implement one,153
t The government remodeled the GST/HST exemption for training designed to assist individuals with disabilities
or disorders in order to better cope with or eliminate the effects of their impediments. Training services are
exempt from GST/HST if a government designs them or the cost of the design is fully or partially subsidized
by a government program. Exemptions are also implemented if the design service is certified in writing by a
recognized health care professional whose services are GST/HST exempt, in the course of a professional-client
relationship with an individual coping with a disorder or disability.154
WHAT IS A DISABILITY IN LAW?
Scholar Michael Lynk proffers a range of expertise in his work on disability-rights in the context of Canadian
law. He writes that there is no real difference in the legal meaning of a “disability” and a “handicap”. He defines a
disability as:
“… the consequence of a disease, injury or condition that impairs one or more facets of a person’s ability to
perform the daily functions of life. The impairment may be temporary, long-lasting, or permanent. It may
be an actual disability, or only one that is perceived as such in the eyes of others, or even an impairment that
one used to have. While many disabilities are beyond the employee’s control, an impairment may have a
quasi-voluntary aspect to it, such as alcoholism, or drug or nicotine addiction.”155
147
Government of Canada. Chapter 3.1. Budget 2014 at 61.
148
Ibid.
149
Ibid at 62.
150
Note that this initiative is designed to increase labour force participation of people with developmental
disabilities by identifying best practices and expanding these activities to communities across Canada. It works
with employers to help them develop their capacity and confidence in hiring people with developmental
disabilities as valuable employees (Ibid at 63).
151
Ibid at 62.
152
Ibid at 192.
153
Ibid at 252.
154
Ibid at 361-362.
155
Michael Lynk, “Disability and the Duty to Accommodate in the Canadian Workplace” at 6 (Updated and
revised version of a previous article that first appeared in the Canadian Labour and Employment Law Journal in
45
Lynk acknowledges that courts and administrative tribunals have largely expanded the types of conditions falling
under the definition of disabilities. He summarizes the state of the law on undue hardship. Undue hardship is a legal
standard to which employers must adhere. The term itself is
“…not singularly defined in Canadian law, but case law suggests that the employer must show that the
efforts to accommodate are serious, conscientious, genuine and demonstrate its best efforts […] Once the
employee has established a prima facie case that he or she has a mental or physical disability that requires
employment accommodation, the burden then shifts to the employer to prove that every reasonable effort
was made to accommodate the employees’ disability.”156
Generally, six factors contribute to the understanding of undue hardship: 1) financial cost, 2) impact on a collective
agreement, 3) problems of employee morale 4) interchangeability of the work force and facilities 5) size of the
employer’s operations and 6) safety.157 A seventh de facto factor, he argues, now seems to include the legitimate
operational requirements of a workplace.158
While many human rights codes define disabilities and set parameters on how employers and other entities are required to
accommodate them, the legislation is illuminated by case law. Although such case law does not supersede or displace legislative
enactments, it is certainly instructive, serving as a guiding force for the interpretation and application of the legislation.
CASE LAW: STATUTORY PROTECTIONS FOR CANADIANS WITH DISABILITY
As mentioned previously, Andrews, a landmark case focusing on equality rights, highly influenced the way in which
discrimination is assessed by Canadian courts with its formulaic analysis. There are, however, additional cases that
provide informative context as to what the common law has contributed to disability law in Canada today. The
discussion herein is not meant to be exhaustive or entirely comprehensive, as this report is not entirely legal in
nature, but rather will provide a glimpse of some of the key questions and concerns covering precedential cases
governing disability law in Canada today.
Given the statutory protections in various human rights codes across Canada, the option to file a claim with a
provincial tribunal remains open, but can be largely unsatisfactory in terms of its results, and the efficacy of the
remedies available. Procedural challenges are said to prevent human rights tribunals from hearing the claims of
workers with mental health issues.159 As such, the significance of disability law precedence is becoming more and
more valuable. In comparison to other domestic courts, Canadian courts are fierce defenders of disability law,
championing accommodation in numerous areas of public life, and grounding their approach in section 15 of the
Charter. There are relevant concerns which remain unscathed, however, in terms of the court’s judicial reasoning
with respect to disability law.
In order for a claimant to satisfy the court that one’s equality rights have been infringed upon, the following is
required: 1) that the impugned law creates a distinction based on enumerated or analogous grounds to those listed
in s. 15 of the Charter and 2) that the distinction creates a disadvantage by perpetuating prejudice or stereotyping.160
Most prevalent are the critiques that identify problems with the way in which comparator groups to those
the Fall of 2009).
156
Ibid at 2-3.
157
Factors extracted from Central Alberta Diary Pool v Alberta (Human Rights Commission), [1990] 2 SCR
449 as cited in Ibid at 9-10.
158
Ibid at 10.
159
Sheldon, supra note 4 at 6.
160
Andrews, supra note 132 at headnote.
46
enumerated in section 15 are identified and how they affect the success of the claimant.
For example, professors Daphne Gilbert and Diana Majury posit that it can be problematic when courts have the
final say on comparator groups because it can lead to an approach that hinges on formal equality without offering
accommodations.161 Moreover, the declaration that comparator groups are a matter of law for the courts demonstrates
a significant shift in the court’s thinking, whereas prior jurisprudence deferred the choice of a preferred comparator
group to the claimant.162 Additionally, they assert that comparator groups make it difficult for claimants to prove and
succeed in their claims.163 They justify their position in a discussion focusing on Auton v British Columbia.164
In Auton, a class of autistic children and their parents sued the British Columbia government and contended that
the failure to fund behavioural therapy constituted discrimination. The court dismissed their claim and concluded
that the legislature is free to target social programs in the manner it wishes.165 Importantly, it concluded that where a
law does not provide a benefit or medical treatment, a claim for discrimination on grounds of a disability cannot be
substantiated before the court.
The court rejected both comparator groups, namely children and adults without disabilities, because it found no
evidence of the lack of therapy and treatment available for non-disabled persons. Some argue that the decision was
too narrow because it predetermined the outcome of the case by distinguishing the treatment sought as a non-core
medical service, making it inconsistent with Eldridge v British Columbia.166 Commentary on Eldridge can be found
below. Briefly, however, it is unclear that a comparison between Auton and Eldridge is warranted as the latter deals
with the absence of interpretation services for patients seeking to communicate with their doctors, whereas the
former addressed the availability of a particular treatment for a disease. The Supreme Court similarly distinguishes
both cases where it acknowledges that Eldridge was premised on the availability of a benefit conferred by the law.167
Nevertheless, the discussion in Auton hinges on identifying appropriate comparator groups, which remains a
challenge for claimants. Appropriating weight on comparator groups in an analysis on equality can be shortsighted,
however, where there is a possibility of manifesting a wrongful presumption that there is only one possible
comparator group.168 Consideration of relevant international human rights law, such as the text of the UNCRD may
have swayed the decision in a different fashion.169
Similarly, in Granovsky v Canada,170 the court held that Parliament holds the constitutional authority to decide the
framework of pension schemes. In Granovsky, the claimant injured his back while in the workplace and thirteen
years later, filed for a permanent disability pension which he was denied because of his failure to make contributions
to the scheme. He alleged that he was temporarily disabled, and consequently, was unable to contribute to the
scheme. Despite ruling against the claimant, the court affirmed that:
161
Daphne Gilbert & Diana Majury, “The Supreme Court of Canada Dooms Section 15” (2006) 24 Windsor
Year Book of Access to Justice 111 at 13 [Gilbert & Majury].
162
Ibid at 5.
163
Ibid at 11.
164
[2004] 3 SCR 657 [Auton].
165
Granovsky v Canada (Minister of Employment and Immigration), [2000] 1 SCR 703 [Granovsky] as cited
in Ibid at para 61 [Auton].
166
Alberta Centre for Constitutional Studies. Online: <http://www.law.ualberta.ca/centres/ccs/issues/equalityrightsanddisability.php>.
167
Auton, supra note 168 at para 34.
168
Gilbert & Majury, supra note 162 at 18.
169
Malhotra & Hensen, supra note 40 at 18.
170
[2000] 1 SCR 703 [Granovsky].
47
Section 15(1) ensures that governments may not, intentionally or through a failure of appropriate
accommodation, stigmatize the underlying physical or mental impairment, or attribute functional
limitations to the individual that the underlying physical or mental impairment does not entail or fail to
recognize the added burdens which persons with disabilities may encounter in achieving self-fulfillment in a
world relentlessly oriented to the able-bodied. [emphasis added]171
In spite of these positive acclamations, the court did not find an infringement of s. 15 and detailed that demarcating
appropriate lines for eligibility is an unavoidable feature of the Canada Pension Plan for the government and other
comparable schemes.
A similar trend in the case law can be identified in the case of Eaton v Brant (County) Board of Education.172 In Eaton,
the parents of a child with cerebral palsy wished to integrate their child into a regular classroom setting. They were
denied integration by the Board of Education, the Special Board to which they appealed, and the Ontario Special
Education Tribunal on the grounds that their child was ‘exceptional’ and required assistance. At issue at the Supreme
Court was whether the parents must have a choice to consent to their child’s segregation without a notice to the
Ministry of the Attorney General. The court concluded that there is no duty or presumption of integration for
disabled students in educational institutions and further, that disability differs from other enumerated grounds in
section 15 of the Charter given its varying contexts.173
Professors Ravi Malhotra and Robin Hansen argue that the holding in Eaton runs contrary to the spirit and letter
of emerging international disability rights law, especially the UNCRD. Moreover, they note that the decision was
disappointing to the disability rights community and set a poor precedent, which confirmed that separate education
constitutes equality under the Charter.174
They treat Wynberg v Ontario175 with the same critiques, arguing that inaccurate comparator groups were used,
and that the holding is inconsistent with the right to be free from discrimination in education under Article 24 of
the UNCRD.176 In Wynberg, the court dismissed a claim under s. 15 in which a group of parents alleged that the
province discriminated against children for failing to provide intensive therapy services for children with autism
after the age of six. Nonetheless, the court found no such violation on the grounds that there was no evidence that
children with autism older than 6 years of age experienced greater stigma or discrimination.177
On a reading of Auton, Granovsky, and Wynberg, it appears that with respect to services provided by government,
either federal or provincial, the courts have exercised significant restraint in terms of deeming any legislative action
unconstitutional and permitting remedies for claimants. This is not the first instance in which deference to the
legislature shapes the outcomes of key Charter cases. Although the Court is not overtly highlighting its deference, it
is clear both in its reasoning, and the rationale justifying its holdings, that this is the case.
Despite these shortcomings, the court has rendered many positive decisions that have altered the legal stage in
Canada to reflect a substantive equality rights dynamic. These decisions have set the stage for many disability rights
claims and championed key principles that served as milestones within the disability rights regime.
171
Granovsky, supra note 171 at para 33.
172
[1997] 1 SCR 241 [Eaton].
173
Ibid at para 69.
174
Malhotra & Hensen, supra note 40 at p 17.
175
[2006] O.J. No. 2732; application for leave to appeal to the Supreme Court of Canada dismissed with
costs, see [2006] SCCA No 441.
176
Ibid at 24.
177
Ibid at 19.
48
The Court considers the overall approach of section 15 of the Charter to be the prevention of the violation of
essential human dignity through disadvantage, stereotyping or prejudice.178 It has also highlighted that assessments
made with respect to disability law cases must take an individualized approach, that employers must accommodate
employees with disabilities and that such accommodation must not be valued at a low threshold.179
These values permeate throughout the Eldridge v British Columbia (Attorney General)180 decision from the Supreme
Court of Canada. There, the oft-cited focus on the availability of services provided by the government was not the
focus. Rather, the issue dealt with the availability of services provided by a private entity. The case was brought forth
by a group of patients at a hospital who claimed that the absence of interpreters in health settings violated their s.
15 given that it exacerbated the difficulty in communicating with doctors, thus potentially opening the doors for
misdiagnosis.
The Court ruled that the Charter may apply to non-governmental entities, like a hospital, where the entity is engaged
in activities that can, in some way, be attributed to government.181 It held that the government did not reasonably
accommodate the class of deaf persons who had trouble communicating with their doctors, and as such, that their
section 15 rights were violated given that communication with medical professionals is an essential component of the
medical system. The decision also draws on the fact that deaf persons receive inferior medical services as compared to
those within the general population, which in order to achieve full equality before the law, ought to be remedied.182
The Court acknowledges statistics which indicate that persons with disabilities have less education compared to nondisabled citizens, are more likely to be outside of the labour force and have higher unemployment rates183 – a bleak
synopsis of the current picture depicting the disparities that plague disabled persons in Canada.
With the pronouncement of all these principles, the Court in Eldridge fundamentally shifted the implementational
value of the Charter to organizations that hold a statutory authority or whose actions are government-directed
in some shape or form. It opens the door for claimants to seek accommodation in the delivery of services within
institutions such as hospitals – a vital milestone forward for the disability rights community.
Perhaps the same could be said about Gibbs v Battlefords & District Co-Operative Ltd.184 In Gibbs, a woman who
fell mentally disabled while employed and became unable to work won her claim against her insurance provider.
She argued that the 2-year period required to pass after a mental illness diagnosis under the benefit scheme
was discriminatory because there was no threshold for benefit receipt in the case of physically disabled persons.
The Court held that the purpose of the insurance scheme was to insure employees against the income-related
consequences of being unable to work due to a disability, and since it limited benefits to her based on a mental
disability, that is a sufficient finding of discrimination under the Saskatchewan Human Rights Code.185
On a similar note, the application of the Meiorin case in Grismer v British Columbia established a pillar in the
disability rights forum for accommodation. In the 1999 Meiorin case, the Supreme Court heard about a female,
British Columbia firefighter who was dismissed because she failed to pass the standard physical test. She succeeded
by arguing that her employer was responsible for invoking adverse discrimination and was eventually reinstated.
Importantly, the Court set out the test for determining whether the effect of discrimination could be justified as a
bona fide occupational requirement and reaffirmed the obligation to accommodate to the point of undue hardship
178
Justice Iacobucci in Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 as cited
in Sheldon, supra note 4 at 3.
179
Ibid at 4.
180
[1997] 3 SCR 624 [Eldridge].
181
Ibid at para 41.
182
Ibid at para 94.
183
Ibid at para 56.
184
[1996] 3 SCR 566 [Gibbs].
185
Ibid at para 44.
49
The application of Meiorin186 case in Grismer187 is more relevant to our inquiry. Briefly, the precedent from Grismer
requires that those who provide services subject to a human rights code must adopt standards that accommodate
people with disabilities without sacrificing their legitimate objective and without incurring undue hardship.188
On a similar wavelength, the Supreme Court has also held that air carriers and airports must accommodate disabled
persons even if an extra seat must be provided at no cost to the passenger.189 The Court confirmed that persons
with disabilities hold a fundamental right to have “equal opportunities”190 to travel which is not to be implemented
in a way that detracts from services with respect to amenities and facilities, also employing a substantive equality
interpretation. The Court has further invoked a duty to respond to barriers191 targeting the comfort, dignity,
independence, safety and security of an individual, all of which require transportation to be as inclusive as possible.
186
Note official case citation: British Columbia (Public Service Employee Relations Commission) v BCGSEU,
[1999] 3 SCR 3.
187
[1999] 3 SCR 868 [Grismer].
188
Ibid at 871.
189
Air Canada et al v Canadian Transportation Agency et al. Online: <http://www.law.ualberta.ca/centres/
ccs/news/?id=215>.
190
Baker & Sarah Godwin, “The Supreme Court of Canada Confirms that Canadians with Disabilities Have
Substantive Equality Rights” (2008) Saskatchewan L Rev 39 at 3. <http://www.scc-csc.gc.ca/case-dossier/info/
sum-som-eng.aspx?cas=32729>
191
Ibid at 13.
50
CHAPTER VI:
Violence, Abuse and Crimes
Committed Against Persons with Disabilities
“Abuse occurs when the integrity of any person is violated by another person who inflicts physical or psychological
pain on them, or in situations where an individual’s civil rights are breached, negated or ignored. The unequal power
that accrues to adults in our society and particularly to adults in care-giving positions is an important factor in
conceptualizing abuse of children and of vulnerable adults”
- Brown and Turk, 1992 as cited by Professor Hilary Brown in
Safeguarding Adults and Children with Disabilities Against Abuse
51
51
There are several lenses from which this chapter can be written. The criminal justice system and its various
dimensions involve complex perspectives from both accused persons and victims with physical and/or mental
disabilities. For the purpose of this report and in maintaining the Committee’s frame of reference, this chapter will
delve into crime against persons with disabilities as its main focus. Brief mention of the effects of the criminal justice
system on mentally and/or physically disabled persons will be made, but it will not comprise a significant aspect of
analysis given the breadth of domestic literature on accused persons with these impediments.
In a study commissioned by the Centre for Justice Statistics Profile Series, Samuel Perreault reports that the personal
victimization rate for persons with mental or behavioural disorder was four times higher than the rate for persons
with no mental disorder in Canada and that almost 65% of violent crimes against persons with activity limitations
were committed by someone who was known to the victim.192 He highlights factors such as age, status, and close
relationships between victims of abuse and their assailants as contributing to the likelihood of higher rates of crime.
Perreault depicts an eye-opening account of statistics on crime against persons with disabilities summarized below.
Figure 3: Statistics Compiled on Violence Against Persons with Disabilities
(all page references are made to Samuel Perreault’s article mentioned above)
Categorization
Policing
Factors linked with victimization
Carers of Persons with Disabilities
Sexual Assault and other Forms of Violence
Statistic
Persons with disabilities reported 30% of victimization
incidents to police. Those without reported 19%. Police
are most likely to be notified when the victim is a man
(p 10)
Disabled persons that are institutionalized are less
likely than those in the general population to report an
incident to the police (p 10)
Poor eating habits, smoking, excessive alcohol consumption, age and sleep disorders (p 14-15)
Sleep disorders and the use of anti depressants
or sedatives were associated with rates of violent
victimization 50% to 90% higher than the average (p 6)
Disabled persons are more vulnerable with persons that
they know, particularly a spouse, who is committing the
abuse (p 10)
Results from the General Social Survey (GSS) 2007
reveal that 12% of violent crimes against persons
with disabilities were considered by the victim to be
motivated by hate (p 12)
In the GSS, 96% of caregivers said they managed to
carry out all responsibilities very well (p 9)
Persons with activity limitations were 2 to 3 times more
likely to be victims of the most severe forms of spousal
violence such as being sexually assaulted, beaten, struck
or threatened with a weapon (p 6)
192
Samuel Perreault, “Criminal Victimization and Health: A Profile of Victimization Among Persons with Activity
Limitations or Other Health Problems” (2009) Canadian Centre for Justice Statistics Profile Series at 6 [Perreault].
52
Categorization
Access to Justice and Quality of System
Statistic
In the GSS, 46% of those with activity limitations
rated the Canadian criminal courts poorly and 60%
of persons with disabilities who had contact with the
courts thought they were doing a poor job with respect
to providing justice quickly (p 13)
Our state of affairs exhibits both a high victimization rate of persons with disabilities and a poor interaction with
the criminal justice system in terms of ensuring protection and averting domestic violence. The absence of extensive
literature addressing abuse against disabled persons and more recent statistics proves problematic for further
engagement and policy development in this area.
The predicament for females with disabilities is no better. Like crimes against persons with disabilities, generally
speaking, a partner, family member or caregiver perpetrates violence against women. In 2006, Statistics Canada
reported that nearly 2 million193 Canadian women had a disability of some sort and were twice as likely to report
severe physical violence and three times as likely to be forced into sexual activity.194 Factors that have influenced the
prevention of abuse against disabled persons and that have hindered recovery include:
1. The lack of training of highly qualified personnel, both medical and legal, who deal with physically disabled
persons reporting crime;
2. Access to justice (police may filter out cases that are difficult to prosecute especially of the woman has
communication difficulties with expressing details of her abuse, or socioeconomic status and service availability
may be an issue);
3. Health care intervention;
4. Violence prevention initiatives; and
5. Lack of funding for intervention services.195
Like the PCPCC, the report published by the Vecova Centre recommends improvements such as training for
police, the Crown, and even judges in order to increase accessibility to the justice system – a central similarity to
the recommendation made in Chapter III of this report which recommends a national education program for law
enforcement officials and their corollaries.
Additionally, the Disabled Women’s Network observes issues of concern with respect to abuse towards disabled
women. They argue that both gender-based and disability-based violence create a high risk of violence against
women with disabilities, and that disabled women are at risk of neglect, physical abuse, sexual abuse financial
exploitation and psychological abuse.196
Clause 15 of the Bill indicate that hate crimes reported to the police rose by 42% in 2009.197 Although disability,
language and sex accounted for approximately 4% of the hate crimes reported in 2009, it remains to be an issue in
Canada. Public hostility towards persons who are visibly different, coupled with institutional/societal stereotypes
further perpetuate such beliefs.
193
Vecova Centre for Disability Services and Research. Violence Against Women with Disabilities, Violence
Prevention Review (February 2011) at 5.
194
Ibid at 7.
195
Ibid at 11.
196
Ibid at 1-2.
197
CBC Canada. Hate Crime Reports Jump by 42% in Canada. June 7, 2011. Online: <http://www.cbc.ca/
news/canada/story/2011/06/07/hate-crimes-statscan.html>.
53
Section 318 of the Criminal Code criminalizes hate propaganda against any members of an identifiable group that
are distinguished by colour, race, ethnic origin or sexual orientation.198 It prohibits advocating genocide, invoking
public incitement of hatred and the willful incitement of hatred against an identifiable group.
This particular section of the Code has only once been amended to include sexual orientation within the category of
an “identifiable group.”
Amending section 318 to include crimes against persons with disabilities would be an appropriate legislative
initiative to respond to crimes against persons with disabilities. Moreover, its inclusion would be in tandem with
section 15 of the Charter which provides equal protection under the law for persons with mental and physical
disabilities.
A simple Private Member’s Bill adding disability to the definition of “identifiable group” easily addresses issues
with hate crime against persons with disabilities. Although not an exhaustive legislative initiative for absolving or
preventing violence towards persons with disabilities, the Committee feels the recommendation below is a method
by which the legal framework for the disability-rights community can be strengthened. The criminalization of such
crime is not novel, particularly given that it is prohibited in the United Kingdom and the United States.
RECOMMENDATION 3:
That a category delineating “persons with disabilities” be included within the definition of an
“identifiable group” against which hate propaganda is a criminalized offence.
Shortly after this report was researched and drafted, the Conservative government introduced Bill C-13, the
Protecting Canadians from Online Crime Act. Clause 12 of the Bill implements the foregoing recommendation,
adding “physical and mental disability” to the definition of an identifiable group that is subject to the hate crime
provision in s. 318.199 If passed, the bill will criminalize hate crime against persons with both physical and mental
disabilities. The committee is pleased to see that one of its recommendations was considered, was brought to the
forefront, and has now been passed into law.
Currently, s. 318. 1(4) of the Criminal Code, RSC 1985, c C-46 identifies colour, race, religion, ethnic origin and
sexual orientation as grounds under which hate propaganda may result in criminal sanctions. The definition of an
“identifiable group” is applicable to the public incitement of hatred in s. 319(1) of the Code along with the willful
promotion of hatred in s. 319 (2). Amending this section to include persons with disabilities would capture crimes
including the willful promotion and public incitement of hatred against those with disabilities.
Given a range of issues associated with hate crime and crimes against persons with disability, such as reporting
difficulties, and the difficulty in testing the reliability of a disabled individual providing testimony before a court of
law, reporting by victims has largely been superseded by news outlets focusing on crimes perpetrated against disabled
persons in the most egregious ways. That is to say, many cases go unreported.
For example, in 1993, the so-called “mercy killing” of Tracy Latimer by her father, Robert Latimer in Saskatchewan
captured a frenzy of media attention. Latimer ended the life of his 12-year old daughter, whose mental capacities
were akin to that of a three year old due to cerebral palsy. He left her in a vehicle and poisoned her with carbon
198
Criminal Code, RSC, 1985 c c18 at s 318.
199
Bill C-13, An Act to amend the Criminal Code, the Canada Evidence Act, the Competition Act and the
Mutual Legal Assistance Act, 2nd Sess, 41st Parl, cl 20 (As passed by the House of Commons 20 October 2014).
Online: <http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6731159&F
ile=24>
54
monoxide. Latimer was eventually charged with second-degree murder and faced a ten-year sentence, despite having
pled the defence of necessity. In 2001, however, the Supreme Court confirmed that the defence of necessity requires
imminent peril or danger, no reasonable legal alternative to a course of action and proportionality between harm
inflicted and harm avoided.200 In a unanimous decision, the Court rejected Latimer’s argument with respect to
having murdered his daughter out of necessity given the pain with which she had to live, noting the gravity of the
offence.
Latimer’s case, twice appealed and granted leave to appeal by the Supreme Court, heavily engaged the disabilityrights community, particularly after the Court first decided to send the case back to trial after finding that the
Crown’s interference with prospective jurors warranted a new trial.201 It incited much scholarly work on the stigma
of abuse and violence against persons with disabilities.
Scholar Archibald Kaiser argues that Tracy’s physical defenselessness explains her vulnerability, and her disability
allowed her to be devalued which rationalized her death in the eyes of the public, thus rendering sympathy for her
father’s actions.202 Kaiser adds that many members of the public justified the murder of Tracy as going too far, thus
perpetuating a mindset of anti-equality.
An array of public responses, both academic and media-centered in nature subsequently opened a Pandora’s box
on mandatory minimum sentences for crimes against persons with disabilities and the integrity of the life of an
individual with a disability.
RECENT AND UPCOMING CHANGES IN THE LAW
CONCERNING THE CRIMINALIZATION OF BEHAVIOUR
AGAINST THOSE WITH DISABILITIES
LEGISLATION
On May 29, 2014, the Disability Tax Credit Promoters Restrictions Act, moved by Cheryl Gallant, MP (RenfrewNipissing-Pembroke) officially came into force.203 Originally a Private Member’s Bill, the Act targets the promoters
of the Disability Tax Credit (DTC), namely those who assist disabled persons in the application process. At its
core, its purpose is to cap the payout percentage that promoters can request from persons with disabilities after
completing their application. Previously, third party disability tax promoters could ask for a percentage of the credit
received, thereby diminishing the amount provided to the applicant receiving the credit. The percentage sought
by promoters varied from the 15-40 percent of the refund, which resulted in earmarked funds of over $20 million
dollars.204 The result was deplorable and resulted in the exploitation of vulnerable, disabled persons.
Among many things, the Act codified the following changes to the DTC regime:
1. Promoters filing DTC applications whose charges exceed the maximum fee must notify the Minister using a
form designated by statute;
2. Deceptive entries concerning the maximum fees are prohibited;
200
R v Latimer, [2001] 1 SCR 3 at paras 29-31.
201
Ibid at para 43.
202
Kaiser H. Archibald, “Latimer: Something Ominous is Happening in the World of Disabled People…”
(2001) 39 Osgoode Hall Law Journal at 7.
203
LegisINFO. Private Member’s Bill. Online: <http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Language=E
&Mode=1&billId=6254155>.
204
Debates Senate of Canada. Hon. Joanna L. Bluth. Dec 4 2013. 41st Parl, 2nd Sess. Vol 149, Issue 22.
Online: <http://www.parl.gc.ca/Content/Sen/Chamber/412/Debates/022db_2013-12-04-e.htm#43>.
55
3. Contravention of (1) or (2) may result in a summary conviction where a fine no less than $1000 and no more
than $25 000 is imposed;
4. A formula which is used to calculate the penalty for fees that exceed the maximum threshold (the maximum
threshold being set by a regulation from the Governor-In-Council);
5. Accepting or charging a fee higher than the maximum may result in a summary conviction with a fine of not
less than 100% and no more than 200% of the total of all amounts by which the fee exceeds the maximum free
amount in respect of a disability tax credit request.205
Given the recent nascence of this legislation, it is difficult to conclude how these reforms will translate in practical
terms, and whether or not they will actually serve as deterring measures against promoters of the DTC. It will likely
take some years for the federal government to gather a host of statistics which will better inform the Canadian
public, and legislators, as to whether these laws will diminish and avert the future financial exploitation of persons
with disabilities.
COMMON LAW
In the common law domain, on October 14, 2014, the Supreme Court of Canada is scheduled to hear the matter
of Lee Carter v. Attorney General of Canada.206 While the court has already ruled that s. 7 is not infringed upon
as a result of s. 241 of the Criminal Code, which prohibits aiding and abetting suicide, this case provides a further
constitutional challenge to numerous provisions in the Code. At issue is whether Ms. Kay Carter and Ms. Gloria
Taylor’s Charter rights, specifically s. 7 and 15, were infringed as a result of the criminalization of assisted suicide and
euthanasia. The case is a joint civil action against the Government of British Columbia. Having regard for the ruling
in Rodriguez v British Columbia (Attorney General)207 which upheld the constitutionality of the aiding and abetting
provisions in the Code.
205
LegisINFO. Sections 3-9 of the Disability Tax Credit Promoters Restrictions Act. Online: <http://www.
parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6630220>.
206
Supreme Court of Canada. Scheduled Hearings Fall 2014. Online: <http://www.scc-csc.gc.ca/case-dossier/
info/hear-aud-eng.aspx?ya=2014&ses=01&submit=Search>.
207
[1993] 3 S.C.R. 519.
56
CONCLUSION:
Synthesizing all of the issues
“It has been said that life has treated me harshly; and sometimes I have complained in my heart because many
pleasures of human experience have been withheld from me…if much has been denied me, much, very much, has
been given me…”
- Brown and Turk, 1992 as cited by Professor Hilary Brown in
Safeguarding Adults and Children with Disabilities Against Abuse
57
57
The overhaul of any system of laws and policies is no easy feat and requires extensive collaboration between various
levels of government and stakeholders. Engineering appropriate safeguards for the disability-rights regime requires,
in particular, vigilance and attention to evolving trends in demographics and the needs voiced by those receiving
services; either directly, or through networks and stakeholders responsible for the delivery of services.
The classic Achilles heel to sample reforms is the absence of statistical evidence to substantiate them. While
suggestions and case studies targeting legal reforms and the roll out of services are undoubtedly practical, their
implementational value diminishes if they do not target the disabled population accordingly. In Canada, the paucity
of consistent, accurate and recent statistical information potentially reduces the impact of even the most wellformulated transformations. Canada would benefit greatly by following the lead of Australia’s Bureau of Statistics,
which is expansive in its data-gathering and frequent in its reporting. The bureau epitomizes a blueprint with a focus
on statistical gathering that is used across the country for legislative and policy-driven reforms.
Among the myriad of programs and legislative provisions designed to cure the deficit in services for the disabled
across the world, this report focuses on four models with commonwealth backgrounds as comparators.
Underpinning each of them is a broad definition of “disability”, which colours the formulation, calibre of services,
and programming intended to ameliorate educational and workplace integration. Both Australia and New Zealand’s
long-term disability strategies reflect these objectives. New Zealand’s Ministerial portfolio for disability services,
combined with its focus on its first nations population and direct implementation of the UNCRD, reveals a practice
model that can be emulated in Canada.208 Considering the foregoing, it stands to reason that both commonwealth
countries offer financial assistance schemes attenuating barriers in the workplace.
While the UK, US, New Zealand and Australia all commit to a broad definition for disability, the American
definition is a laudable model in that it targets similar diseases also prevalent in Canada. The American definition,
inspired by extensive activism in and lobbying in the United States, mirrors the desire for an all-encompassing
definition under which many individuals are subsumed, thus opening the gateway to social aid, among many things.
Resorting to these international models as case studies, it becomes readily apparent that focus on reversing stigma,
particularly within the workplace, is a paramount concern. What remains universal about societal perceptions is
the stigma engrained in the interactions we have with persons living with a disability. No matter the length of the
interaction with these individuals, whether in passing, or in a more concentrating setting such as the workplace,
reversing these stigmas is the sine que non of any successful set of reforms, particularly those in the employment
sector.
As canvassed in this report, the unemployment rate for persons with disabilities remains a factor for consideration
when targeting improvements. While the reasons for barriers to employment vary between states, and are not
sufficiently explainable by common factors, ensuring integration within the employment sector is a necessary
condition for fostering the independence of disabled persons. The stigma permeating societal perception is, writ
large, the difficulty with inclusion in the workplace.
These international models provide an impetus for the nature of the recommendations made by the PCPCC.
Importantly, the recommendations parallel four consistent schemes evident in the international models: statistical
gathering, an abundance of social services, a comprehensive federal act, and the codification of criminal offences
for hate crime against persons with disabilities. What is most apparent in the study of international models is the
ubiquity of national disability-rights legislative schemes, in addition to human rights and constitutional statutes,
which inform the recommendation for a national disability act in Canada. While the recommendations are neither
208
In light of the constitutional matrix in Canada assigning jurisdiction over health care to provincial
governments, a federal deputy for disability issues to the Minister of Health, or an individual Ministry tasked to
liaise with provincial ministers may be a feasible solution.
58
meant to encompass all of the areas in which structural changes are needed, nor are they exhaustive, they target
many prevalent areas of concern.
Despite the many impediments standing in the way of integration, it remains clear from the anecdotes offered in
this report, and from the many undocumented stories, that many have and continue to overcome systemic barriers,
reaching great heights. Such success stories exude the confidence and perseverance that motivate disabled persons to
achieve their desired objectives, just as other Canadians have. Whether it involves obtaining an education, driver’s
license, modifying or contributing to a scientific theory, or achieving the point of self-sufficiency, these accolades
speak for the fact that there is no feat too great for an individual whose physical or cognitive functions are impaired.
It is the hope of the committee that the dissemination of this report not only inspires the disabled to overcome daily
encumbrances that come their way, but that it also spearheads dialogue among law makers to legislate prudently, and
collaboratively, so as to reverse the stigma that pervades our society.
59