II. Equal Recognition before the Law and Access to Justice

Equal Recognition before the Law

Under article 12 of the Convention, persons with disabilities must be recognized as persons before the law ⁶¹ and enjoy legal capacity on an equal basis with others in all aspects of life. ⁶² State Parties must provide support to persons with disabilities to exercise their legal capacity, and implement safeguards to prevent abuse of the support provided. ⁶³ They must also take measures to ensure that persons with disabilities have an equal right to own or inherit property, to control their own financial affairs and to have equal access to bank loans, mortgages and other forms of financial credit and that they are not arbitrarily deprived of their property. ⁶⁴

Note #61

Supra note 2, art 12(1).

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Note #62

Ibid, art 12(2).

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Note #61

Supra note 2, art 12(1).

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Note #63

Ibid, arts 12(3), 12(4).

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Note #64

Ibid, art 12(5).

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A survey of Canadian law reveals many examples of legislative provisions relating to civil capacity and incapacity. For example, in BC, adults are presumed capable of

making decisions about personal care, health care and legal matters and about the routine management of the adult's financial affairs. ⁶⁵

An adult is also presumed capable of making a representation agreement which allows the adult to name an individual to help make decisions regarding various matters, such as the routine management of financial affairs and obtaining legal services. ⁶⁶ The Civil Code of Québec states that every human being possesses juridical personality and has the full enjoyment of civil rights ⁶⁷ and that every person is fully able to exercise his civil rights. ⁶⁸ More generally, the Québec Charter of Human Rights and Freedoms states,

Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law. ⁶⁹

Note #65

Representation Agreement Act, RSBC 1996, c 405, s 3(1)(b) [RAA].

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Note #66

Ibid, ss 3(1)(a), 5, 7.

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Note #67

art 1 CCQ.

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Note #68

art 4 CCQ.

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Note #69

Supra note 51, s 6.

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In Manitoba and Ontario, a person is incapable of managing property where the person

is not able to understand information that is relevant to making a decision in the management of his or her property, or is not able to appreciate the reasonably foreseeable consequences of a decision or lack of a decision. ⁷⁰

A capable person may appoint a substitute decision-maker under a power of attorney. ⁷¹ Where it is believed that a person is incapable of managing property, an individual can apply ⁷² or be appointed as a guardian of the incapable person's property. ⁷³

Note #70

The Vulnerable Persons Living with a Mental Disability Act, SM 1993, c 29, s 81 [VPA]; Substitute Decisions Act, 1992, SO 1992, c 30, s 6 [SDA]. The Newfoundland statute contains a definition for mentally disabled person with similar effect. See Mentally Disabled Persons' Estates Act, RSNL 1990, c M-10, s 2(f) [MDPEA].

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Note #71

See e.g. The Powers of Attorney Act, CCSM c P97, s 10; Ontario, Ministry of the Attorney General, A Guide to the Substitute Decisions Act, (Ontario: Publications Ontario, 2000) at 4-5 [Ontario, A Guide to the SDA].

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Note #72

See e.g. VPA, supra note 70, s 82(1).

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Note #73

See e.g. Ontario, A Guide to the SDA, supra note 71 at 4-5; MDPEA, supra note 70, s 3(1) (a court is also entitled to make a declaration that a person is incapable of managing his or her affairs without making a declaration of mental disability, see s 17(1)); art 258 CCQ (in Québec, similarly, a tutor, curator, or adviser may be appointed).

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The relevant statutes also lay out the duties and powers of the substitute decision-maker. They are those of a fiduciary, meaning their powers and duties shall be exercised and performed diligently, with honesty and integrity and in good faith for the benefit of the person with a disability. ⁷⁴ A breach of duty may not lead to liability if, in BC, the representative complies with the relevant statute, ⁷⁵ and in Manitoba and Ontario, if the representative acted honestly, reasonably and diligently. ⁷⁶ A decision-maker must encourage the participation of the person with a disability in the making of a decision. ⁷⁷ In all five provinces, there are provisions regarding the termination of a decision-maker, which typically occurs when an agreement ends or a decision-maker is discharged. ⁷⁸ The duties and powers of a substitute decision-maker in Québec depend on whether a tutor, curator or adviser is appointed, and are laid out in Chapter III of Title Four of the Civil Code of Québec. ⁷⁹ The provinces have similar regimes for addressing the appointment, obligations and rules regarding decision-makers for personal and/or health care. ⁸⁰

Note #74

VPA, supra note 70, s 99; SDA, supra note 70, s 32(1). For a similarly worded statute, see RAA, supra note 65, s 16(1). Newfoundland's MDPEA does not explicitly set out the requirements regarding good faith or integrity. These would be prescribed by the common law (see Vincent v. Kirkpatrick, 238 Nfld & PEIR 342 at para 34 (NLSC – TD).

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Note #75

RAA, ibid, s 23(1).

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Note #76

VPA, supra note 70, s 107(2); SDA, supra note 70, s 33(2).

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Note #77

See e.g. RAA, supra note 65, s 16(2); VPA, ibid, s 103; SDA, ibid, s 32(3).

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Note #78

RAA, ibid, ss 27-29; VPA, ibid, ss 92(6), 130(1), 136; SDA, ibid, ss 12, 20, 28; MDPEA, supra note 70, s 19; arts 295-297 CCQ.

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Note #79

arts 256-297 CCQ.

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Note #80

RAA, supra note 65, s 2(a), VPA, supra note 70, Division 3; SDA, supra note 70, Part II; Advance Health Care Directives Act, SNL 1995, c A-4.1, s 3; arts 11-25 CCQ; An Act respecting health services and social services, RSQ, c S-4.2, ss 9, 10.

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Access to Justice

Under article 13 of the Convention, State Parties are required to ensure

effective access to justice for persons with disabilities on an equal basis with others

through appropriate accommodations in order for persons with disabilities to participate directly and indirectly in all legal proceedings. ⁸¹ To carry out this obligation, State Parties are to provide appropriate training for those who work in the field of the administration of justice. ⁸² Corollary obligations include ensuring that accommodation is not seen as discriminatory, and that women and children with disabilities have full and equal enjoyment of all human rights and fundamental freedoms. ⁸³ Finally, access to justice obligations would not be fulfilled unless persons with disabilities were able to obtain an effective remedy for a human rights violation through a competent authority provided by the legal system of the state. ⁸⁴

Note #81

Supra note 2, art 13(1).

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Note #82

Ibid, art 13(2).

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Note #83

Ibid, arts 5(4), 6(1), 7(1).

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Note #84

Ibid, art 4(1)(e).

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There are various accommodations federally and provincially that enable persons with mental or physical disabilities to participate in legal proceedings both directly and indirectly. A litigation guardian may bring or answer a proceeding on behalf of a person under a disability, whose definition includes minors and those who are mentally incompetent or incapable. ⁸⁵ A court can remove, appoint or substitute a litigation guardian if it is in the best interests of the person with a disability. ⁸⁶ In claims involving a person under a disability, the court must approve a settlement before it is binding. ⁸⁷

Note #85

Supreme Court Civil Rules, BC Reg 168/2009, s 20-2(2) [SCCR]; Court of Queen's Bench Rules, Man Reg 553/88, ss 1.03, 7.01 [CQBR]; Rules of Civil Procedure, RRO 1990, Reg 194, ss 1.03(1), 7.01(1) [RCP]; Rules of the Supreme Court, 1986, SNL 1986, c 42, Sch D, ss 1.03(o), 8.01(1) [RSC]. In Ontario, a litigation guardian may be appointed where a person under a disability is not a party, but nonetheless requires separate representation (see RCP, s 7.04(3)). Québec has a distinct but generally similar regime for the protection of the interests of individuals without full legal capacity (see Title Four CCQ).

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Note #86

SCCR, ibid, s 20-2(11); RSC, ibid, s 8.02(4); CQBR, ibid, s 7.06(2); RCP, ibid, s 7.06(2).

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Note #87

SCCR, ibid, s 20-2(17); CBQR, ibid, 7.08(1); RCP, ibid, s 7.08(1); RSC, ibid, s 8.06.

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In Ontario, the Human Rights Legal Support Centre provides advice and assistance, legal and otherwise regarding the making of an application to the Human Rights Tribunal. ⁸⁸ The Centre was implemented as a result of the Ontario government's decision to remove the default public investigation and prosecution of human rights complaints and to leave it to victims to investigate and bring their cases privately before the Tribunal. ⁸⁹ In contrast, in Newfoundland, the Human Rights Commission is required to

co-operate with and help a person, an organization or a group concerned with human rights, whether within or outside the province. ⁹⁰

Note #88

OHRC, supra note 51, s 45.13(1).

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Note #89

See AODA Alliance, AODA Alliance Calls on Independent Review of Ontario's Human Rights Enforcement to Hold Open, Accessible, Public Hearings (17 November 2011).

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Note #90

HRA, supra note 51, s 23(f).

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There are a variety of other provisions that assist persons with disabilities to take part directly or indirectly in various legal proceedings. Section 14 of the Charter states that a party or witness to any proceeding who is deaf has the right to the assistance of an interpreter. ⁹¹ Under the Canada Evidence Act, where a witness has a physical or mental disability and has difficulty communicating, the court may permit him or her to give evidence by any means that enables the evidence to be intelligible, provided that he or she has the necessary capacity. ⁹² The Act also states that a person whose mental capacity to testify as a witness is challenged may testify if he or she can communicate the evidence and promises to tell the truth. ⁹³ In 2012 a majority of the Supreme Court of Canada held that the individual need not explain that he or she understands the duty to tell the truth. ⁹⁴

Note #91

Supra note 33. The Supreme Court of Canada emphasized the importance of this right in R v Tran, [1994] 2 SCR 951 at paras 38-39, saying it goes to the very integrity of the administration of criminal justice in this country.

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Note #92

RSC 1985, c C-5, s 6.

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Note #93

Ibid, s 16.

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Note #94

R. v. D.A.I., 2012 SCC 5 at para 23.

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The Criminal Code provides for supports and accommodations for disabled witnesses and jurors. ⁹⁵ Unique to Ontario is the Accessibility for Ontarians with Disabilities Act, 2005 (AODA), which applies to

every person or organization in the public and private sectors of the Province of Ontario, including the Legislative Assembly of Ontario. ⁹⁶

The Accessibility Standards for Customer Service regulation states that service provides must provide for training about the provision of services to persons with disabilities. ⁹⁷ The Ontario Courts Accessibility Committee was developed in 2007 with the goal of making Ontario's courts more accessible to persons with disabilities. ⁹⁸ The Rules of Professional Conduct for lawyers in Ontario contains an example of rule-making by a professional licensing body that serves to promote the rights of persons with disabilities. Rule 2.02(6) states that when working with a client under a disability, licensees are to as far as reasonably possible, maintain a normal lawyer and client relationship. ⁹⁹

Note #95

RSC 1985, c C-46, ss 486.1(1), 627.

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Note #96

SO 2005, c 11, s 4 [AODA].

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Note #97

O Reg 429/07, s 6(1).

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Note #98

Justice Susan Lang & Ann Merritt, A Message from the Ontario Courts Accessibility Committee Chairs (8 July 2011), available online at the Ontario Ministry of the Attorney General.

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Note #99

Law Society of Upper Canada, Rules of Professional Conduct (22 September 2011). The Law Society of Upper Canada's Paralegal Rules of Conduct (22 September 2011), s 3.02(7) contains an almost identical rule.

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Equal Rights to Human Rights and Fundamental Freedoms

Section 28 of the Charter guarantees the rights and freedoms within the Charter equally to male and female persons. Under the Québec Charter,

Every person has a right to a full and equal, public and fair hearing by an independent and impartial tribunal, for the determination of his rights. ¹⁰⁰

The rights in the Québec Charter are also guaranteed equally to women and men. ¹⁰¹

Note #100

Supra note 51, s 23.

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Note #101

Ibid, s 50.1.

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Right to Life, Liberty and Security of the Person

The Convention also requires State Parties to ensure that persons with disabilities have the right to life, liberty and security of the person on an equal basis with others, that they are not deprived of this right arbitrarily or unlawfully, and if liberty is deprived, it is on an equal basis with others and is in compliance with international human rights law and the Convention. ¹⁰² These rights also include freedom from torture or cruel, inhuman or degrading treatment or punishment and freedom from exploitation, violence and abuse. ¹⁰³ Finally, State Parties must ensure that persons with disabilities have liberty of movement and freedom to choose a residence and nationality on an equal basis with others. ¹⁰⁴

Note #102

Convention, supra note 2, arts 10, 14.

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Note #103

Ibid, arts 15, 16.

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Note #104

Ibid, art 18.

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Section 7 of the Charter states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. ¹⁰⁵

As section 7 includes everyone, persons with disabilities are protected on an equal basis with persons without disabilities. Section 7 is not limited to criminal or penal matters. ¹⁰⁶ In R v Malmo-Levine; R v Caine, the Court stated that a principle of fundamental justice under section 7 is

a legal principle about which there is significant societal consensus that it is fundamental to the way in which the legal system ought fairly to operate, and it must be identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty or security of the person. ¹⁰⁷

The Quebec Charter employs similar language, stating that

Every human being has a right to life, and to personal security, inviolability and freedom

and

No one may be deprived of his liberty or of his rights except on grounds provided by law and in accordance with prescribed procedure. ¹⁰⁸

Note #105

Supra note 33.

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Note #106

Blencoe v British Columbia (Human Rights Commission), [2000] 2 SCR 307 at para 45 [Blencoe].

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Note #107

2003 SCC 74, [2003] 3 SCR 571 at para 113.

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Note #108

Supra note 51, ss 1, 24.

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The liberty interest in section 7 is engaged

where state compulsions or prohibitions affect important and fundamental life choices

and is not limited

to mere freedom from physical restraint. ¹⁰⁹

However, this personal autonomy has been found not to be synonymous with unconstrained freedom. ¹¹⁰ In the Supreme Court of Canada decision in R v Morgentaler, the plurality judgment of Beetz J held that security of the person under section 7 includes

a right of access to medical treatment for a condition representing a danger to life or health without fear of criminal sanction. ¹¹¹

The concurring judgment of Wilson J held that the right to liberty grants the individual a degree of autonomy in making decisions of fundamental personal importance. ¹¹² In Rodriguez v British Columbia (Attorney General), the Supreme Court interpreted the judgments in Morgentaler as holding that

personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. ¹¹³

In Rodriguez, the applicant had Lou Gehrig's disease, and wanted the choice to end her life when she would no longer be able to enjoy it, with the assistance of a physician. ¹¹⁴ The applicant asked that the prohibition of assisted suicide in the Criminal Code be declared invalid on the ground that it violated her section 7, 12 ¹¹⁵ and 15(1) Charter rights. ¹¹⁶ In discussing section 7, the Court stated that

security of the person, by its nature, cannot encompass a right to take action that will end one's life as security of the person is intrinsically concerned with the well-being of the living person

and

human life is seen to have a deep intrinsic value of its own. ¹¹⁷

The Court concluded that the assisted suicide provision did not violate any principle of fundamental justice ¹¹⁸ because

human life must be respected and we must be careful not to undermine the institutions that protect it. ¹¹⁹

Note #109

Blencoe, supra note 106 at para 49.

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Note #110

Ibid at para 54.

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Note #111

[1988] 1 SCR 30 at para 87.

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Note #112

Ibid, at para 230.

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Note #113

[1993] 3 SCR 519 at para 136 [Rodriguez].

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Note #114

Ibid at paras 1-2.

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Note #115

That is, the right not to be subjected to any cruel and unusual treatment or punishment (supra note 33).

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Note #116

Rodriguez, supra note 113 at para 3.

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Note #117

Ibid at para 129.

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Note #118

Ibid at para 175.

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Note #119

Ibid at para 173.

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Under Part XX.1, section 672.54 of the Criminal Code, an accused who has been found not criminally responsible (NCR) may be discharged absolutely, discharged with conditions or detained in custody in a hospital depending on

the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused. ¹²⁰

The disposition made must be the least onerous and least restrictive to the accused. ¹²¹ The Supreme Court of Canada has explained that throughout the NCR process,

the offender is to be treated with dignity and accorded the maximum liberty compatible with Part XX.1's goals of public protection and fairness to the NCR accused. ¹²²

The Court concluded that the NCR scheme does not violate section 7 of the Charter. ¹²³ Sections 8-14 of the Charter detail specific deprivations of the right set out in section 7, including the right to be free from unreasonable search and seizure and the right not to be arbitrarily detained or arrested. ¹²⁴

Note #120

Supra note 95.

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Note #121

Ibid.

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Note #122

Winko v British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625 at para 43.

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Note #123

Ibid at para 73.

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Note #124

See Reference re Motor Vehicle Act (British Columbia) S 94(2), [1985] 2 SCR 486 at para 27.

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Freedom from Exploitation, Violence and Abuse

The Criminal Code prohibits the sexual exploitation of a person with a disability. ¹²⁵ The offence is made out where someone in a relationship of authority or dependency has sexual contact with a person who has a disability and there is no consent. ¹²⁶ Under section 215(1)(c), everyone is under a legal duty

to provide necessaries of life to a person under his charge if that person ... is unable, by reason of ... mental disorder ... to provide himself with the necessaries of life. ¹²⁷

Other provisions in the Criminal Code that are of more general application also address exploitation, violence and abuse against persons with disabilities. These include, for example, the criminal negligence, abandoning child, and child pornography provisions. ¹²⁸

Note #125

Supra note 95, s 153.1.

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Note #126

Ibid, s 153.1(1).

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Note #127

Ibid.

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Note #128

Ibid, ss 163.1, 218-221.

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In BC, the Adult Guardianship Act provides support and assistance to

adults who are abused or neglected and who are unable to seek support and assistance

due to physical restraint or a physical handicap. ¹²⁹ Community care facilities (defined as premises in which a person provides care to three or more persons who are not related by blood or marriage) are governed by the regulations of the Community Care and Assisted Living Act. ¹³⁰ A licensee of a community care facility must ensure that a person in care is not subjected to financial abuse, emotional abuse, physical abuse, sexual abuse or neglect. ¹³¹ Legislation in other provinces similarly protects persons with disabilities against abuse or neglect. ¹³² Statutes of more general application, such as those that protect persons from family violence, may be applicable in preventing exploitation, violence and abuse of persons with disabilities. ¹³³

Note #129

RSBC 1996, c 6, s 44.

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Note #130

SBC 2002, c 75, s 1; BC Reg 96/2009.

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Note #131

BC Reg 96.2009, ibid, s 52.

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Note #132

See e.g. VPA, supra note 70, ss 20.1, 20.2; Protection for Persons in Care Act, CCSM c P144, s 2; Long-Term Care Homes Act, 2007, SO 2007, c 8, s 19(1), 20; Neglected Adults Welfare Act, RSNL 1990, c N-3 (to be replaced by Bill 1, An Act Respecting the Protection of Adults, 4th Sess, 46th General Assembly, Newfoundland and Labrador, 2011 (assented to May 31, 2011), SNL 2011, cA-4.01).

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Note #133

See e.g. The Domestic Violence and Stalking Act, SM 1998, c 41.

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Freedom of Movement and Nationality

The Charter provides that

Every citizen of Canada has the right to enter, remain in and leave Canada. ¹³⁴

Every citizen and permanent resident of Canada also has the right to move to and take up residence in any province as well as to pursue the gaining of a livelihood in any province. ¹³⁵ The Supreme Court of Canada has ruled that

[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in the country. ¹³⁶

Under section 38(1)(c) of the Immigration and Refugee Protection Act, a foreign national will generally be inadmissible to Canada on health grounds if his or her health condition might reasonably be expected to cause excessive demand on health or social services. ¹³⁷ An individualized assessment must be made where

the medical officers must necessarily take into account both medical and non-medical factors, such as the availability, scarcity or cost of publicly funded services, along with the willingness and ability of the applicant or his or her family to pay for the services. ¹³⁸

Note #134

Supra note 33, s 6(1).

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Note #135

Ibid, s 6(2).

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Note #136

Canada (Minister of Employment and Immigration) v Chiarelli, [1992] 1 SCR 711 at para 24.

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Note #137

SC 2001, c 27.

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Note #138

Hilewitz v Canada (Minister of Citizenship and Immigration); De Jong v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 706 at para 55.

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