In defining our scope, we relied on a broad concept of disability, which reflects the Code and a social and human rights approach to disability. The human rights approach aims to achieve equality and inclusion for persons with disabilities by removing barriers and creating a climate of respect and understanding.[8] The social approach is supported by case law and is reflected in the Convention on the Rights of Persons with Disabilities (CRPD).
The CRPD recognizes that “disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.” [9] The definition includes but is not limited to people who have long-term “mental impairments.” [10]
This approach to disability is also reflected in a landmark human rights case (Mercier) at the Supreme Court of Canada. It used an equality-based framework of disability that takes into account evolving biomedical, social and technological developments, and emphasized human dignity, respect and the right to equality. The Court made it clear that disability must be interpreted to include its subjective component, as discrimination may be based as much on perceptions, myths and stereotypes, as on the existence of actual functional limitations.[11]
Using this approach, the OHRC applied a broad definition to mental health issues[12] and addictions for this consultation. Under the Code, disability includes a “mental disorder” or a “condition of mental impairment,” but the Code does not list all conditions that could be considered a disability.[13] Many of the people we heard from had been diagnosed with, or previously had, a psychiatric disability or addiction, were labelled by others as having a psychiatric disability or addiction, had been involved with the mental health system or in general identified themselves as having mental health issues, mental illness or addictions.
Mental health and addictions cover a broad range, including severe and less severe disabilities and emerging disabilities. We heard from people with depression, anxiety disorders, bipolar disorder, eating disorders, drug addiction, alcohol addiction, schizophrenia, postpartum depression or borderline personality disorders, or multiple disabilities. We also heard from advocates and family members.
We also considered submissions from individuals and organizations representing people who had neurological conditions causing dementia, such as Alzheimer’s disease and Huntington’s chorea. Finally, we reviewed submissions from people with developmental disabilities such as autism spectrum disorder and fetal alcohol spectrum disorder who identified as having a mental health issue or addiction. Not everyone said they had some kind of impairment. Some people talked about their past mental health issue or addiction, or about how others perceived them to have a mental health disability or addiction. Past or perceived disabilities are also protected under the Code.
We chose to limit our focus to the experiences of people with mental health issues and addictions due to the particular forms of discrimination faced by these groups. But we know that people with other types of disabilities (such as intellectual or cognitive disabilities) can face similar experiences of discrimination, restrictions of their autonomy rights, historical disadvantage and stereotyping about their skills and abilities. These disabilities may also intersect with mental health (for example, in the case of people with dual diagnoses).
4.1 People with addictions
People with addictions[14] (for example, drug addiction, alcohol addiction or problem gambling[15]) can experience similar or distinct forms of marginalization compared to people with only mental health issues. We heard that people face a general lack of societal acceptance, negative stereotyping and criminalization of their addictions.
Laws and programs may create certain restrictions for people with addictions, compared to people with other types of disabilities. For example, people with different mental health disabilities may be eligible to receive disability benefits under the Ontario Disability Support Program (ODSP). Until recently, ODSP eligibility requirements excluded people who were disabled solely because of their dependence on drugs or alcohol. But the Ontario Court of Appeal has upheld prior decisions that found it was discriminatory and contrary to the Code to deny income support to people with alcohol or substance addictions because of assumed characteristics.[16] The rulings rejected the government’s argument that the purpose of denying disability benefits was to help people overcome their substance abuse problem.
Because of these unique experiences of discrimination, this group needs special consideration. People with addiction disabilities have the same human rights protections as people with other types of disabilities. However, there is still debate in human rights law over different forms of addiction and whether these constitute disabilities.[17] There is often significant cross-over between addictions and mental health.[18] Although many of the human rights issues facing these groups are similar, we were told that it was important to recognize that people with addictions and people with mental health issues often identify as distinct equity-seeking groups.
When it comes to methadone, there are still stereotypes about the substances you were taking - you can’t be trusted; you don’t have a grip on reality; you’re invisible or you’re a problem. If you have that kind of history, you have to be the problem. - Focus group participant
[8] See Law Commission of Ontario, The law as it affects persons with disabilities. Preliminary consultation paper: Approaches to defining disability (2009), online: Law Commission of Ontario www.lco-cdo.org.
[9] Convention on the Rights of Persons with Disabilities, 13 December 2006, U.N.T.S. vol. 2515, p.3 [CRPD], (entered into force 3 May 2008, accession by Canada 11 March 2010) online: Office of the United Nations High Commissioner for Human Rights www2.ohchr.org/english/law/disabilities-convention.htm at preamble (e).
[10] CRPD, ibid., Article 1.
[11] Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montreal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [1999] 1 S.C.R. 381.
[12] Several types of definitions exist for “mental health issues.” One definition supplies a bio-medical approach. In the Government of Canada’s 2006 report, The Human Face of Mental Health and Mental Illness in Canada, “mental health issues” are referred to as, "Alterations in thinking, mood or behaviour or some combination thereof, that are associated with significant distress and impaired functioning" (Ottawa: Minister of Public Works and Government Services Canada, 2006) at 2. However, as stated previously, mental health issues are not barriers in and of themselves. Society can create barriers through inaccessible information or communications as well as through attitudes. Barriers may exist because of interactions between the environment and a person’s personal experience of impairment.
[13] Subsections 10(1) (d) and (b) of the Code.
[14] The OHRC recognizes that different forms of addiction, such as alcohol and drug dependencies, have been found to be disabilities within the meaning of the Code. The Standing Senate Committee on Social Affairs, Science and Technology notes that, “Addiction implies uncontrollable use of one or more substances, associated with discomfort or distress when that use is discontinued or severely reduced. Addiction may also describe certain other behavioural problems, such as compulsive or pathological gambling, which can be considered a process rather than a substance addiction.” (Interim Report of the Standing Senate Committee on Social Affairs, Science and Technology, Report 1: Mental Health, Mental Illness and Addiction: Overview of Policies and Programs in Canada (2004) at 74 (Chair: Michael J.L. Kirby). However, as described in the note above, barriers in society can create or aggravate the experience of disability for someone with an addiction.
[15] In Ontario, 4.8% of adults (449,000 people) have moderate or severe gambling problems. An additional 9.6% (860,000 people) are classified as “at-risk” for problem gambling. “Info on Problem Gambling,” online: The Centre for Addiction and Mental Health www.camh.net/About_Addiction_Mental_Health/AMH101/top_searched_prob_gam…;.
[16] Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 (CanLII).
[17] The Law Commission of Ontario posits that, “to some degree, the differences in approaches to addictions [in human rights law] may reflect perceptions that these conditions involve a degree of voluntariness that is not invoked in other types of disability – that is, there is no true impairment.” Law Commission of Ontario, supra note 8 at 34.
[18] A large US epidemiological study found that 37% of people with an alcohol disorder had at least one mental disorder and 21.5% had another drug dependence disorder. For people with a lifetime history of drug abuse dependence, 53.1% also had a mental disorder. Darrel A. Regier, et al., “Comorbidity of Mental Disorders With Alcohol and Other Drug Abuse: Results From the Epidemiologic Catchment Area (ECA) Study” (1990) 264:19 J.A.M.A. 2511.