Canada Signs New UN Convention on the Rights of Persons with Disabilities
By Fay Faraday and Victoria Shen
On 30 March 2007, Canada joined 80 countries and the European Union in signing the United Nations’ new Convention on the Rights of Persons with Disabilities. While the United Nations has previously developed various non-binding declarations, a programme of action and standard rules for promoting equality for persons with disability, the Convention is significant because it is the first UN instrument to enshrine a comprehensive set of binding commitments to eradicate discrimination against persons with disabilities.
The Convention will be an important new tool for advancing the rights of persons with disabilities in Canada – both through lobbying and through litigation. Apart from setting out binding commitments, the Convention is important because it marks a significant “paradigm shift” in how the rights of persons with disabilities are addressed. It adopts the vision of equality, long advocated by disability rights advocates, that disability is socially constructed. This means that while individuals may have various physical, mental, intellectual or sensory impairments or functional limitations, the “disability” arises to the extent that social relations, institutions and environments are constructed without reference to the needs of persons with disabilities and erect barriers to their full and effective participation in society on an equal basis with others.
In conjunction with this analysis, the Convention set outs a detailed set of pro-active commitments which outline the breadth and depth of changes that are needed in all spheres of human interaction – economic, social, political, cultural and recreational – in order to secure equality. As such it will provide new leverage in advancing legal arguments before federal and provincial tribunals and courts with respect to the meaning of equality, minimal impairment of rights and accommodation to the point of undue hardship.
This article reviews the present status of the Convention, the key elements of the Convention, and its significance for advancing disability rights through litigation in federal and provincial courts and tribunals.
A. Current Status of the Convention
The Convention and its companion Optional Protocol were adopted by the UN General Assembly on 13 December 2006. It was open for signatures on 30 March 2007. As of mid-April 2006, 86 countries had signed the Convention itself and 45 had signed the Optional Protocol.
The Convention is enforced by requiring States to file comprehensive reports every four years outlining the measures taken and progress made to give effect to the obligations under the Convention. The reports are reviewed by a 12-person expert panel called the UN Committee on the Rights of Persons with Disabilities which in turn makes recommendations and suggestions to the State. The Optional Protocol provides a separate enforcement mechanism which gives individuals the right to file complaints claiming a violation of the Convention to which the State must respond. The Committee will examine the individual complaints and has the power to make suggestions and recommendations to the State. While Canada has signed the Convention, it has not signed the Optional Protocol.
The Convention will come into effect 30 days after 20 countries have ratified it. The Optional Protocol will come into effect 30 days after 10 countries ratify it. At this point, only Jamaica has formally ratified the Convention. While Canada has signed the Convention, further work is needed before Canada will ratify it. Because the Convention touches on many areas of provincial jurisdiction, the federal government is embarking on discussions with the provinces to secure agreement to ratification. It will be important for human rights advocates to monitor this process federally and in each province to ensure that ratification proceeds.
B. Overview of the Convention
The development of this UN Convention – the first of the 21st century – was unprecedented in that it involved extensive participation by members of civil society who are and represent persons with disabilities. This involvement is clearly apparent as the text of the Convention sets out a strong vision of what equality means from the perspectives of persons with disabilities. Canadian representatives were particularly involved in the development of the Convention and this influence is also apparent as the rights to equality pick up the language of equality from s. 15 of the Charter and the concept of reasonable accommodation that has developed under Canadian human rights statutes.
The Convention’s object is clearly expressed in Article 1 as aiming to secure full enjoyment of human rights for persons with disabilities. This Article also provides a broad understanding of who is included within the concept of persons with disabilities:
“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.”
The fundamental right to equality is set out in language taken directly from s. 15 of the Canadian Charter of Rights and Freedoms. To this effect, Article 5 states as follows:
- State Parties recognize that all persons are equal before and under the law and are entitled without any discrimination to the equal protection and equal benefit of the law.
- States Parties shall prohibit all discrimination on the basis of disability and guarantee to persons with disabilities equal and effective legal protection against discrimination on all grounds.
- In order to promote equality and eliminate discrimination, States Parties shall take all appropriate steps to ensure that reasonable accommodation is provided.
- Specific measures which are necessary to accelerate or achieve de facto equality of persons with disabilities shall not be considered discrimination under the terms of the present Convention.
The guiding principles of the Convention are set out in an extensive preamble which enshrines the social development model of disability rights and in Article 3 which outlines the key principles as:
(a) Respect for inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of persons;
(b) Non-discrimination;
(c) Full and effective participation and inclusion in society;
(d) Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity;
(e) Equality of opportunity;
(f) Accessibility;
(g) Equality between men and women;
(h) Respect for evolving capacities of children with disabilities and respect for the rights of children with disabilities to preserve their identities.
The Convention in Article 4 sets out general obligations on State Parties to ensure and promote “the full realization of all human rights and fundamental freedoms for all persons with disabilities without discrimination of any kind on the basis of disability”. To this end, State Parties are required to undertake a broad range of positive actions “to the maximum of its available resources ... with a view to achieving progressively the full realization of the rights” in the Convention. These pro-active commitments include the obligation to adopt all appropriate legislative, administrative and other measures to implement the rights recognized in the Convention; to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities; to ensure public authorities and institutions conform with the Convention; to take all appropriate measures to eliminate discrimination on the basis of disability by any person, organization or private enterprise; and to promote research and development with respect to universal design, accessible communications technologies, and mobility aids and training of those working with persons with disabilities to provide the assistance and services guaranteed by the Convention.
The Convention makes repeated references to States’ obligation to “closely consult with and actively involve persons with disabilities” in the “development of legislation and policies to implement the Convention and in other decision making-processes concerning issues relating to persons with disabilities” (Article 4). The Convention also makes repeated reference to the obligation to recognize that women and girls with disabilities are subject to particular discrimination and to ensure that all appropriate measures are taken to ensure the full development, advancement and empowerment of women with disabilities (see: Preamble, Article 6).
The Convention then sets out extensive pro-active obligations which itemize what steps are needed to ensure equality for persons with disabilities in all contexts.
The Convention reaffirms that persons with disabilities have the inherent right to life (Article 10), the right to legal capacity and the support that they may need to exercise their legal capacity (Article 12) and the right to equal access to justice, including the appropriate accommodations and supports to ensure that persons with disabilities can effectively exercise their legal rights (Article 13).
The Convention reaffirms the rights to liberty, security, and integrity of the person (Article 14 and 17). This includes freedom from torture, freedom from cruel, inhuman or degrading treatment, and freedom from forced medical or scientific experimentation (Article 15). In addition, the Convention guarantees freedom from exploitation, violence and abuse and provides a commitment from State parties to promote the recovery, rehabilitation and reintegration of victims of abuse (Article 16).
Persons with disabilities have a right to privacy (Article 22). They have the right to marry, found a family, and access to reproductive and family planning education (Article 23). Children with disabilities have an equal right to a family life and will not be separated from their parents unless it is in the best interest of the child.
On the issue of accessibility, the Convention requires countries to identify and eliminate obstacles and barriers to facilitate the access of persons with disabilities to the physical environment, transportation, public facilities, services, information and communication technologies (Article 9). It recognizes too that the freedom of expression is closely linked to facilitating the use of Braille, sign language and other accessible formats of communication (Article 21).
Persons with disabilities enjoy an equal right to live independently, to be included in the community, to choose where and with whom they live (Article 19). Their mobility and independence are to be fostered by facilitating access to mobility aids, devices, assistive technologies and live assistance at an affordable cost (Article 20).
The right to education under the Convention ensures equal access to primary and secondary education, vocational training, adult learning and lifelong learning (Article 24). During the preparatory meetings, there were extensive discussions on whether children with disabilities should be integrated with the general school population or whether the Convention should support segregated schooling. The current language endorses inclusive education and is entirely silent on segregated schools. This was a compromise which leaves a “space” for specialized systems.
The Convention recognizes that persons with disabilities have a right to work and employment and that the State has the obligation to ensure that reasonable accommodation is provided to persons with disabilities in the workplace (Article 27). The term “reasonable accommodation” is conceptually similar to the duty to accommodate to the point of undue hardship found under Canadian jurisprudence (Article 2).
The Convention recognizes that persons with disabilities are entitled to an adequate standard of living for themselves and their families and to adequate social protection (Article 28). They are entitled to the right to the highest attainable standard of health without discrimination on the basis of disability (Article 25) and to habilitation and rehabilitation services and programs to enable maximum independence (Article 26).
The Convention confirms rights to equality in political and public life, including the right to vote, to stand for election and hold office (Article 29). This requires voting procedures, facilities, and materials that are appropriate and accessible.
Through the Convention, States confirm the right to equal participation in cultural life, including access to cultural materials in accessible formats, and to equal participation in recreation, leisure and sports including participation in mainstream sporting events, as well as the development of disability-specific sporting and recreational activities. Persons with disabilities are also entitled to recognition and support for their specific cultural and linguistic identity (Article 30).
As set out above, Canada will be held accountable for compliance with the Convention through its period reports to the UN Committee on the Rights of Persons with Disabilities (Articles 33-37). As they have done in respect of Canada’s reports under other UN instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women, human rights advocates can consider providing input into this process by preparing “shadow reports” on Canada’s compliance.
C. Significance of the Convention to Domestic Litigation
Despite its lengthy recitation of commitments and guarantees, the Convention does not set out new rights as such. The rights to equality without discrimination on the basis of disability have been guaranteed in domestic and international law for decades and most of the substantive rights set out in the Convention are enshrined in general language in other UN instruments.
What the Convention contributes to the law, however, that it provides a comprehensive catalogue of what the right to equality means in specific contexts and what actions are needed in order to implement the general guarantees of equality. It provides is a genuine understanding of what equality means from the perspective of persons with disabilities. It is a substantive equality document.
For this reason it has the potential to be an important tool in advancing the right to equality under domestic statutes.
Canadian courts have long ruled that international human rights instruments are not part of Canadian law unless they are incorporated by statute. They cannot be enforced directly before domestic courts and tribunals unless the federal Parliament or provincial legislature have passed domestic laws to implement them.
But this does not mean that international covenants have no place in domestic litigation. In fact, international instruments are frequently used to interpret domestic rights. They have been referred to increasingly over the past decade, particularly to give meaning to rights under the Charter and under human rights statutes.
The Supreme Court has long held that international human rights instruments can be relevant and persuasive sources for interpreting the meaning of rights that exist in domestic law. There are two main theories of statutory interpretation in support of this:
- First, when enacting laws, the parliament or legislature is presumed to know the full legal context that is in existence, including international law. Parliament or legislature is then presumed to respect the values and principles enshrined in international law and, insofar as is possible, laws should be interpreted to reflects the values and principles that Canada has accepted in international law.
- Second, international human rights instruments are an important source and aid for interpreting the general and open-textured language in the Charter and other domestic human rights law. The Supreme Court has long accepted that Canada’s international human rights obligations should inform the interpretation of the content of the rights guaranteed by the Charter and that “the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified.” 1
While the Supreme Court has through a series of cases beginning with Eaton and Eldridge, increasingly moved toward a paradigm that recognizes that disability is socially constructed, Canadian courts and tribunals could benefit from further guidance on the details of what it takes to eradicate those socially constructed barriers. They could benefit from detailed guidance on what it means to build a society that is reflective of and grounded in a practice of equality characterized by social inclusion, participation, accessibility, independence, self-determination for persons with disabilities.
It is in the very detailed expressions of what the right to equality and accommodation looks like from the perspective of persons with disabilities that the Convention has the potential to be most helpful in litigation. The detailed expressions of the rights will help give substantive content to general equality principles and to develop substantive standards for accommodation. While arguments grounded in this perspective have been made for years by domestic disability rights advocates, having the principles and rights explicitly enshrined as fundamental international law should provide new leverage to the legal arguments.
To view a copy of the Convention on Rights for Persons with Disabilities, see below. To view a copy of the Optional Protocol, see below.
- Reference re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, per Dickson C.J.C. While this statement was originally made in dissent, it has been repeatedly and unanimously endorsed by the Court.