I. Introduction

This chapter surveys laws and policies in Canada that affect the rights of persons with disabilities. It does so as part of a broader project of international disability rights monitoring, and is guided by DRPI's National Law and Policy Monitoring Template. ¹ The Template is based on the United Nations Convention on the Rights of Persons with Disabilities. ² Its purpose is to monitor human rights for people with disabilities at the systemic level, that is, at the level of existing laws, policies, and programs, and to identify and draw attention to the most critical gaps and deficiencies in the legislative and policy framework. ³ It provides headings and questions based on the articles in the Convention, arranged by category of rights (civil, political, economic, social and cultural) and human rights principles (dignity; autonomy; participation, inclusion and accessibility; non-discrimination and equality; and respect for difference).

Note #1

(Toronto: DRPI, 2008) [Template].

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Note #2

30 March 2007, 2515 UNTS 3 [Convention].

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Note #3

Supra note 1 at 2.

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Providing an extensive review of disability law and policy in Canada is a large task. This is due to the division of law-making power among federal and provincial legislatures, and the functioning of three distinct branches of government: legislative, executive, and judiciary. Also, measures affecting persons with disabilities are numerous and complex. ⁴ Some of these measures directly target some or all persons with disabilities while others are of general application and affect persons with disabilities, sometimes differently or disproportionately compared with persons who do not have disabilities. ⁵ Likewise, some laws and policies deal with broad human rights principles, and others are specific to certain sectors of society. In focusing on describing these sources, this chapter is unable to engage in the subsequent steps of disability rights monitoring. These next steps include evaluating the operation of the law on the ground, and drawing conclusions on whether norms of the Convention have successfully been implemented in Canada.

Note #4

See Law Commission of Ontario, Principles for the Law as It Affects Persons with Disabilities: Background Paper (Toronto: Law Commission of Ontario, March 2012) at 3.

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Note #5

Ibid.

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This chapter first briefly outlines the Canadian social and legal landscape with respect to disability. It then examines Canadian law and policy under specific parts of the Template, namely: access to justice and equal recognition before the law; education; health, habilitation and rehabilitation; and work. It discusses the most important law and policy instruments from the following Canadian jurisdictions: federal, British Columbia (BC), Manitoba, Ontario, Quebec, and Newfoundland and Labrador. Its analysis thus reflects the geographic and cultural diversity of law and policy in Canada.

General Statistics and Issues Faced by Persons with Disabilities in Canada

Over 4.4 million Canadians, or about one in seven, had a disability in 2006. ⁶ The disability rate increases with age, and although boys are more likely than girls to have disabilities when younger, women are generally more likely than men to have disabilities as they age. ⁷ The 2010 Federal Disability Report states that persons with disabilities "are over-represented within the low-income population" in Canada, with 14.2% of adults with disabilities living in low-income families compared to 10.1% of adults without disabilities. ⁸ This is because persons with disabilities are less likely than persons without disabilities to obtain a high school diploma, and are more likely to live alone. ⁹ The employment and unemployment rates for working-age adults with disabilities are 53.5% and 10.4%, respectively, compared to 75.1% and 6.8% for working-age adults without disabilities. ¹⁰ Income for working-age adults with disabilities decreases as severity of disability increases and those with developmental disabilities have the lowest average employment income. ¹¹ 26.1% of persons with disabilities who are unemployed believe that they were refused jobs due to their disability. ¹² Persons with disabilities are also more likely to live in "inadequate homes" than persons without disabilities (9.9% compared to 6.4%). ¹³ 5.0% of adults with disabilities do not have a needed accessibility feature (e.g. widened hallways or doorways, ramps or visual alarms) for their home. ¹⁴

Note #6

Human Resources and Skills Development Canada, Disability in Canada: A 2006 Profile, (Gatineau: Publishing Services, 2011) at 5.

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Note #7

Ibid. at 6, 7, 10, 16, 20, 25-26, 34-35, 39-41.

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Note #8

Human Resources and Skills Development Canada, 2010 Federal Disability Report, (Gatineau: Publications Services, 2010) at 7-9 (a low-income family is one in which the proportion of their income that they spend on key necessities, such as food, shelter and clothing, is 20 percentage points more than the average family, adjusted for family size and community size at 8)..

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Note #9

Ibid at 7.

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Note #10

Ibid at 43, 46.

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Note #11

Ibid at 9.

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Note #12

Ibid at 51.

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Note #13

Ibid at 12 (inadequate homes are defined as homes that are in need of major repairs).

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Note #14

Ibid.

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Access to appropriate and necessary health care is vital in ensuring the well-being of persons with disabilities. ¹⁵ Between 2005 and 2006, 14.8% of adults with disabilities were unable to obtain the necessary health care or social services, most commonly due to "substantial out-of-pocket costs" and because many adults with severe disabilities do not know where or how to obtain such health care. ¹⁶ Around 12.9% of adults with disabilities were unable to take required medication, or had to take less at least once during 2005 and 2006 because of the cost of medication. ¹⁷

Note #15

Ibid at 24.

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Note #16

Ibid at 18.

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Note #17

Ibid at 22.

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Families who have children with disabilities face many barriers to ensuring that their children receive proper education. These barriers include costs ..., perceptions that children with disabilities are not career-oriented and the notion that it is difficult to educate children with disabilities in a mainstream education system. ¹⁸ The extent of classroom participation by children with disabilities decreases as severity of disability increases. ¹⁹ Aids and devices are necessary to ensure that children with disabilities are able to participate fully in school. ²⁰ However, 17.9% of children with disabilities do not receive the required aids and devices at school, primarily due to a lack of funding in the school system. ²¹

Note #18

Ibid at 27.

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Note #19

Ibid at 29.

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Note #20

Ibid at 30.

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Note #21

Ibid.

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Participation in the community, political life and cultural activities are important for fully enriched lives. ²² Between 2005 and 2006, 34.4% of persons with disabilities participated in volunteer activities; however, this rate decreases with increasing severity of disability. ²³ Interestingly, in 2008, the overall voter participation rate for the federal election was 75.8% for adults with disabilities, compared to 72.0% for adults without disabilities. ²⁴

Note #22

Ibid at 54.

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Note #23

Ibid.

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Note #24

Ibid at 56.

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United Nations Convention on the Rights of Persons with Disabilities

Canada was one of the first countries to sign the Convention. ²⁵ It entered into force on May 3, 2008. ²⁶ Canada ratified the Convention on March 11, 2010. ²⁷ Prior to ratification, the federal and provincial governments aimed to ensure that laws, policies and programs in Canada were consistent with the Convention. ²⁸ The federal government also participated in community and public consultations. ²⁹ Canada did not sign the Optional Protocol to the Convention on the Rights of Persons with Disabilities,³⁰ which allows individuals or groups to make complaints concerning alleged violations of the provisions of the Convention by State Parties. ³¹ The remainder of this introduction describes Canada's legal system generally as it is relevant to persons with disabilities.

Note #25

Human Resources and Skills Development Canada, United Nations Convention on the Rights of Persons with Disabilities: National Stakeholder Consultations Report, (Gatineau: Publishing Services, 2011) at 1 [Consultations Report].

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Note #26

United Nations, Convention on the Rights of Persons with Disabilities

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Note #27

Consultations Report, supra note 25 at 1

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Note #28

Consultations Report, supra note 25 at 6.

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Note #29

Ibid at 7.

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Note #30

2515 UNTS 3, 30 March 2007.

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Note #31

Consultations Report, supra note 25 at 7.

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National Legal Landscape on Disability

Canada is a federal state that operates under constitutional supremacy, meaning that The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. ³² The human rights of all Canadians (including persons with disabilities) are protected through two main legal regimes: (1) the Canadian Charter of Rights and Freedoms ³³ (which is entrenched in the Constitution Act, 1982), and (2) federal and provincial/territorial human rights legislation. These regimes provide a broad guarantee to equality, prohibiting discrimination on a number of grounds, including disability.

Note #32

Constitution Act, 1982, s 52(1), being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

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Note #33

Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, ibid [Charter].

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The Charter is a constitutional document, and applies to federal and provincial governments and matters within their legislative authority. ³⁴ In unclear situations, courts determine whether an entity is a government actor, or whether an act is governmental for the purpose of deciding if the Charter applies. ³⁵ The Charter will not apply in cases of civil litigation with private parties where no act of government is relied upon to support the action. ³⁶ Such a litigant can, however, argue that the common law is inconsistent with Charter values and should be modified. ³⁷

Note #34

Ibid, s 32.

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Note #35

McKinney v University of Guelph, [1990] 3 SCR 229 at paras 221, 230.

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Note #36

Retail, Wholesale and Department Store Union, Local 580 [RWDSU] v Dolphin Delivery Ltd, [1986] 2 SCR 573 at para 39.

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Note #37

Hill v Church of Scientology of Toronto, [1995] 2 SCR 1130 at paras 95-98.

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Section 15(1) of the Charter states,

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. ³⁸

In a s 15(1) challenge, a court is to apply the following two-staged test:

(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping? ³⁹

The purpose of section 15 has been described as preventing

the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration. ⁴⁰

Section 15(1) promotes substantive rather than formal equality, a concept that rejects the mere presence or absence of difference as an answer to differential treatment but rather focuses on the actual impact of the impugned law, taking full account of social, political, economic and historical factors concerning the group. ⁴¹

Note #38

Supra note 33.

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Note #39

R v Kapp, [2008] 2 SCR 483 at para 17.

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Note #40

Law v Canada (Minister of Employment and Immigration), [1999] 1 SCR 497 at para 51.

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Note #41

Withler v. Canada (Attorney General), [2011] 1 SCR 396.

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The Supreme Court of Canada has recognized that the history of disabled persons in Canada is largely one of exclusion and marginalization and because of this, persons with disabilities face persistent social and economic disadvantage. ⁴² The recognition of this wider historical context informs a court's inquiry into disability discrimination claims made under section 15(1). ⁴³ The Supreme Court has also stated generally that in analysing differential treatment based on disability, it is,

useful to keep distinct the component of disability that may be said to be located in an individual, namely the aspects of physical or mental impairment, and functional limitation, and on the other hand the other component, namely, the socially constructed handicap that is not located in the individual at all but in the society in which the individual is obliged to go about his or her everyday tasks. ⁴⁴

Note #42

Eldridge v British Columbia (Attorney General), [1997] 3 SCR 624 at para 56.

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Note #43

Ibid at para 55.

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Note #44

Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 SCR 703.

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While s 15(1) of the Charter aims at preventing governments from engaging in discrimination, s 15(2) enables governments to actively combat discrimination by developing programs aimed at helping disadvantaged groups improve their situation. ⁴⁵ Section 15(2) states that

any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of ... mental or physical disability

is not precluded by s 15(1). ⁴⁶ The Supreme Court of Canada has recognized that legislatures need to treat different individuals and groups in different ways in order to govern effectively and that accommodating differences, which is the essence of true equality, frequently requires distinctions to be made. ⁴⁷

Note #45

R v Kapp, supra note 39 at para 16.

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Note #46

Supra note 33.

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Note #47

Law Society British Columbia v Andrews, [1989] 1 SCR 143 at para 31.

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If a law does not fall under the ambit of s 15(2) and is found to violate s 15(1), a court will consider under s 1 of the Charter whether the measure in question is a reasonable limit[] prescribed by law as can be demonstrably justified in a free and democratic society. ⁴⁸ Where a Charter violation is not justified under section 1, a court of competent jurisdiction is allowed to give such remedy as the court considers appropriate and just in the circumstances. ⁴⁹ However, a breach of a Charter right does not necessarily entitle the victim to a remedy. ⁵⁰

Note #48

Supra note 33.

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Note #49

Supra note 33, s 24(1).

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Note #50

R v Waller, 89 BCAC 257 at paras 17-18.

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While the Charter applies only to governmental action, human rights legislation applies to both the public and private sector. Enacted at the federal and provincial/territorial levels, this legislation prohibits discrimination on several grounds (including disability) in various social spheres, such as employment and the provision of services to the public. ⁵¹ The legislation is enforced through a complaints mechanism. Individuals or groups that encounter discrimination can file a complaint, at no charge, describing the harm they have experienced. ⁵² Complaints may be investigated, ⁵³ settled through mediation, ⁵⁴ or adjudicated before a panel. ⁵⁵ Where a complaint resolved by adjudication and discrimination has been found, the panel may provide remedies including compensation or an order to redress or prevent discrimination. ⁵⁶

Note #51

Canadian Human Rights Act, RSC 1985, c H-6, ss 5-14.1 [CHRA]; Human Rights Code, RSBC 1996, c 210, ss 7-14 [BC HRC]; The Human Rights Code, SM 1987-88, c 45, ss 9-19 [MHRC]; Human Rights Act, 2010, SNL 2010, c H-13.1, ss 9-17, 19, 21 [HRA]; Human Rights Code, RSO 1990, c H.19, ss 1-6 [OHRC]; Charter of Human Rights and Freedoms, RSQ, c C-12, ss 10-19 [Québec Charter].

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Note #52

See e.g. CHRA, ibid, s 40; BC HRC, ibid, s 21; MHRC, ibid, s 22.

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Note #53

See e.g. CHRA, ibid, ss 43, 44; MHRC, ibid, ss 26-8; OHRC, supra note 51, s 44; HRA, supra note 51, ss 27-9; Québec Charter, supra note 51, s. 62.

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Note #54

See e.g. CHRA, ibid, ss 47, 48; BC HRC, supra note 51, s 27.6; MHRC, ibid, s 29(2); HRA, ibid, s 26; Québec Charter, ibid, s. 62.

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Note #55

See e.g. CHRA, ibid, s 53; BC HRC, ibid, s 37; MHRC, ibid, s 29(3); OHRC, supra note 51, s 45.2; HRA, ibid, Part V; Québec Charter, ibid, s. 80.

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Note #56

CHRA, ibid, ss 49(2), 50, 53. BC HRC, ibid, s 37; MHRC, ibid., s 43(2); OHRC, ibid, ss 34(1), 45.2; HRA, ibid, ss 35, 39; Québec Charter, ibid, s 49.

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Canada has developed a rich jurisprudence establishing key human rights principles. Of particular importance to persons with disabilities is the duty to accommodate. This principle requires governments and the private sector to restructure their policies, practices and standards to include the needs of persons with disabilities. ⁵⁷ For example, urban transportation systems must accommodate persons who use wheelchairs or other mobility aids. ⁵⁸ The duty to accommodate does not apply to those situations where the accommodation required would cause undue hardship such as extreme cost, significant business disruption or serious safety risks. ⁵⁹ Special programs to prevent disadvantage or relieve hardship are not considered discriminatory, but the requirements and implementation of such programs differ depending on jurisdiction. ⁶⁰

Note #57

See generally Canadian Human Rights Commission, Duty to Accommodate Frequently Asked Questions & Answers, CHRC [Duty to Accommodate FAQ].

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Note #58

David Baker & Sarah Godwin, ALL ABOARD!: The Supreme Court of Canada Confirms that Canadians with Disabilities Have Substantive Equality Rights (2008) 71 Sask L Rev 39 at 56-57.

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Note #59

Duty to Accommodate FAQ, supra note 57.

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Note #60

CHRA, supra note 51, s 16; BC HRC, supra note 51, s 42; MHRC, supra note 51, s 11; HRA, supra note 51, s 8; OHRC, supra note 51, s 14; Québec Charter, supra note 51, ss 86-92.

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