We heard that many people with psychosocial disabilities are unaware of their human rights. Some people identified experiences that extended beyond the right to be free from discrimination. Because of this, it is important to understand how people’s experiences relate to human rights protected under domestic and international human rights documents.
6.1. The Ontario Human Rights Code (Code)
Under the Code, people with mental health disabilities or addictions have the right to be free from discrimination and harassment under the ground of disability in five social areas: housing, employment, goods, services and facilities, contracts, and membership in unions, trade and professional associations. In this consultation, we focused on housing, employment and services to understand the depth of people’s experiences in these areas.
Discrimination is defined in many different ways. Discrimination includes any distinction, including any exclusion, restriction or preference based on a prohibited Code ground, that impairs the recognition of human rights and fundamental freedoms.[24] Discrimination can be direct, indirect, or it can be the result of seemingly neutral policies, qualifications, requirements, standards or rules that, in fact, exclude or disadvantage people with mental health disabilities or addictions (section 11). To determine this, we must consider whether the needs of the individual or group could be accommodated without undue hardship.[25] The Code also sets out the duty to accommodate based on disability (section 17). It is not discriminatory to refuse a service, job or housing because the person with a disability cannot fulfill the essential requirements. However, a person will only be considered incapable if their disability-related needs cannot be accommodated without undue hardship.
People who are associated with someone with a mental health disability or addiction (for example, friends or family) are also protected from discrimination based on their association (section 12). People are also protected from reprisal if they assert their Code rights (section 8).
6.2. The Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms guarantees people’s civil, political and equality rights in the policies, practices and legislation of all levels of government. Certain rights may particularly apply to people with psychosocial disabilities in certain circumstances, due to legislation and policies that focus on these groups.
Under section 7 of the Charter, all people have the right to life, liberty and security of the person.[26] This section was used to advance the current understanding of the rights of people with mental capacity to refuse to consent to treatment.[27] Section 9 protects people against being detained or imprisoned arbitrarily, or with no good reason, and section 10 outlines one’s rights upon arrest or detention. These rights must be respected by organizations that carry out government policies, like police or hospitals, that may seek to detain people with mental health disabilities.[28]
Section 15 guarantees people the right to equal protection under the law and equal benefit of the law, without discrimination based on mental or physical disability, among other grounds. This section is similar to the purpose of the Code. Rights under the Charter are guaranteed unless violations can be justified under section 1, which considers whether the Charter violation is reasonable in the circumstances.
6.3. The United Nations’ Convention on the Rights of Persons with Disabilities (CRPD)
In 2010, Canada ratified the CRPD, an international treaty designed 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.”[29] The CRPD moves away from considering people with disabilities as recipients of charity towards being holders of rights. It emphasizes non-discrimination, legal equality and inclusion. Countries that have ratified or signed their acceptance to the CRPD are known as States Parties.
International treaties and conventions are not part of Canadian law unless they have been put into legislation.[30] However, the Supreme Court of Canada has stated that international law helps give meaning and context to Canadian law. The Court said that domestic law (which includes the Code and the Charter) should be interpreted to be consistent with Canada’s international commitments.[31] The CRPD is an important human rights tool that puts positive obligations on Canada to ensure that people with disabilities have equal opportunity in all areas of life. To meet the obligations under the CRPD, Canada and Ontario should put in place community supports and accommodations to allow for equal opportunities for people with disabilities, and should evaluate legislation, standards, programs and practices to make sure rights are respected.
All of the articles in the CRPD are relevant to the lives of people with psychosocial disabilities, but some apply particularly to the issues raised in the consultation. These include rights to:
- Accessibility (Article 9)
- Equal recognition before the law (Article 12)
- Liberty and security of the person (Article 14)
- Live independently and be included in the community (Article 19)
- Health, habilitation and rehabilitation (Articles 25 and 26)
- An adequate standard of living and social protection (Article 27).
Canada has not signed the Optional protocol of the CRPD, which means that people cannot complain directly to the UN Committee on the Rights of Persons with Disabilities. However, there are reporting requirements for the CRPD. The Canadian Association of Statutory Human Rights Agencies (CASHRA) has called on all levels of government to fulfill their obligations. This includes consulting and involving persons with disabilities and representative organizations to monitor the CRPD‘s implementation, identifying initiatives and developing plans to show how they will address CRPD rights and obligations.
Throughout our consultation, individuals and groups identified themes and principles that can inform a human rights-based approach to issues affecting people with psychiatric disabilities and addictions. These reflect the Code and build upon many of the principles that underlie the CRPD, including:
- Respect for dignity
- Individual autonomy
- Non-discrimination and equality of opportunity
- Full and effective participation in society
- Respect for individual differences.
Dignity and respect are paramount. - Survey respondent
Recommendations:
1. The Government of Ontario should address its obligations under the Convention on the Rights of Persons with Disabilities in full to promote human rights and fundamental freedoms for all persons with psychosocial disabilities. This includes actively promoting an environment where people with psychosocial disabilities can and are encouraged to take a full part in the conduct of public affairs (Article 29).
2. The Government of Ontario should measure and report to the public of Ontario on the inequities that create the conditions for discrimination against people with mental health disabilities or addictions (such as unemployment and low income) and efforts to address these conditions. Such a report should be submitted to the federal government as part of its reporting requirements under Article 35 of the CRPD.
[24] In keeping with the decision of the Supreme Court of Canada in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 174, discrimination in a social area may be described as any distinction, conduct or action, whether intentional or not, but based on a Code ground, that creates disadvantage by perpetuating prejudice or stereotyping. In most human rights cases, if a distinction based on a prohibited ground that creates a disadvantage is shown to exist, it is not necessary to have independent evidence of stereotyping or of prejudice; Ontario Disability Support Program v. Tranchemontagne, supra note 16.
[25] See also British Columbia (Public Service Employee relations Comm.) v. BCGSEU, [1999] 3 S.C.R. 3 [Meiorin].
[26] Under section 7 of the Charter, people cannot be deprived of these rights except according to the principles of fundamental justice.
[27] Health Care Consent Act, 1996 S.O. 1996 c. 2, Sched. A.
[28] An Ontario Court has confirmed that rights under the Mental Health Act must be taken to conform to similar rights under sections 9 and 10(b) of the Charter; R. v. Webers, 1994 CanLII 7552 (ON SC) at para. 31. The Court cited with approval a Review Board decision which noted “…the Mental Health Act is replete with procedural safeguards. The safeguards have been implemented in recognition of the fact that a patient who is detained under the authority of the Mental Health Act or who loses control over his or her own treatment or assets has been deprived of their liberty, autonomy or right to self-determination no less than an individual who has been imprisoned.”
[29] CRPD, supra note 9, Article 1.
[30] Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R., para. 69
[31] Baker, ibid at para. 70; The UN has said that ratifying the CRPD creates a “strong interpretive preference in favour of the Convention. This means that the judiciary will apply domestic law and interpret legislation in a way that is as consistent as possible with the Convention.” UN, From Exclusion to Equality: Realizing the Rights of Persons with Disabilities: Handbook for Parliamentarians on the Convention on the Rights of Persons with Disabilities and its Optional Protocol (Geneva: United Nations, 2007) at 107.