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The Legal Right to Live in Community

A Presentation by Graeme Wyatt

for Citizens With Disabilities Ontario

August 27, 2021

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Housekeeping

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Please mute your microphone now whether you are online or on the phone.
Please do not use the chat box during the presentations. Questions will be moderated.

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Land Acknowledgment

Pat Seed:

We acknowledge that our Toronto head office is located on territory which is part of the Dish with One Spoon Treaty, an agreement between the Anishinaabeg, Haudenosaunee and allied nations to peaceably share and care for the resources around the Great Lakes. This territory is also covered by the Upper Canada Treaties.
We recognize the contributions Métis, Inuit, and other Indigenous peoples have made, both in shaping and strengthening our province and country. We recognize and deeply appreciate their historic connection to the land.
Those coming together today do so on traditional Indigenous territories across Ontario – and beyond. As settlers, we are grateful to all the generations of people who have taken care of this land.
We are also grateful to have the opportunity to meet and work in these territories. But we recognize that we benefit from ongoing practices of settler colonization and so we are committed to working on dismantling ongoing colonial practices.
CWDO acknowledges the many historical and ongoing impacts that have culminated in creating the adverse conditions which in turn, have led to a higher prevalence of disability among Indigenous people. In recognition of this, CWDO is committed to enhancing our relationships and support with First Nation, Métis and Inuit peoples in order to better support Indigenous people with disabilities in Ontario.

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Today’s Guest Speaker

Graeme Wyatt, second year law student at the University of Toronto Faculty of Law
Volunteered with Citizens With Disabilities - Ontario during the 2020/2021 academic year
Brother named Ian is an adult living with Autism Spectrum Disorder in Alberta.

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Please note

Feel free to ask questions
Feel free to ask me to talk slower
If you would like citations for this presentation, feel free to contact me
This is legal information, NOT legal advice

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Acknowledgements

Thank you to Pro Bono Students Canada and Citizens with Disabilities Ontario for their collective support
Thank you to Terry Green, Tracy Odell, Elizabeth Mohler, Vince Calderhead, and Brendan Pooran for their expertise, edits, and feedback

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Introduction

Ontarians with disabilities have been historically discriminated against when accessing housing, and they are still discriminated against.
We are increasingly vocal about the need for housing solutions that allow individuals to lead more independent lives within the communities they already live in.
Under provincial or federal law, do people with disabilities have the legal right to receive government supports that will allow them to live independently in the community?

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Housing in the past

For more than 100 years, government-run institutions were the most common form of public housing for people with disabilities.

The last institution was closed in 2009

Government-run institutions were very problematic:

Lack of funding
Widespread abuse (physical, mental, sexual)
Isolation from the community
Limited autonomy

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Housing today

The Ontario government now offers more diverse options for housing, but many issues remain:

Institutionalization is less common, but still happens. Fewer than 10,000 Canadians with intellectual disabilities live in long-term care homes. 30,000 Canadian adults with intellectual disabilities are currently living in congregate residential services and group homes.
Income and supports provided by the Ontario government may not allow for a meaningful quality of life.

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The Solution

To guarantee people with disabilities the same level of access to housing as Ontarians without disabilities, and to alleviate disparities within the current system, the government must provide:

Accessible housing
Necessary supports
Sufficient Income

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Is there a legal right�to these provisions?�

A legal right is a right recognized by law, and the right to these provisions could either be:

explicit (“people with disabilities have the right to X”); or
instrumental (“people with disabilities have the right to not be discriminated against in this manner therefore they have the right to X”).

This right could exist in either federal or provincial legislation.

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Legislation considered�in this presentation

The United Nations Convention on the Rights of Persons with Disabilities (CRPD)
The Charter of Rights and Freedoms (The Charter)
The Ontario Human Rights Code (OHRC)

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What is the CRPD?

A document created by the United Nations that sets down a number of social, cultural, and economic rights for individuals with disabilities
Formally adopted by the United Nations in 2006
Formally ratified by Canada in 2010
See https://disabilityrightsonline.ca/ for a self-paced training module

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Relevant sections of�the CRPD

Article 10: “…every human being has the inherent right to life and shall take all necessary measures to ensure its effective enjoyment by persons with disabilities on an equal basis with others.”
Article 14: persons with disabilities are not to be unlawfully or arbitrarily deprived of their liberty.
Article 19: individuals with disabilities have the right to live independently and be included in the community, as well as the right to choose their living arrangements, and the right to access a range of in-home residential and other�community support services.

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How has the CRPD been implemented?

In order for international agreements to be binding in Canadian law, the Canadian government must pass a piece of legislation that explains how the law will be legally implemented, or designate existing laws as the enforcement mechanism for the law
The Canadian government did not pass implementing legislating, instead indicating that the CRPD will be enforced through existing human rights legislation (e.g., the Charter)

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The CRPD in Practice

Without implementing legislation, it becomes difficult to enforce the rights in the CRPD that are not also guaranteed in the Charter
The CRPD having force in Canadian law can sometimes come down to the individual opinions of judges
Decisions have precedence unless overturned by a higher court

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Part 1: Conclusion

While the CRPD is an important aspirational document, the rights related to provisions for independent living in the community cannot be effectively enforced without implementing legislation.
The CRPD cannot be relied on to create a right to provisions.

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What is the Charter of Rights and Freedoms?

The Charter is a bill of rights that is entrenched in Canada’s constitution, and all laws must be consistent with the Charter.
It sets out the various rights and freedoms guaranteed to Canadians as necessary to living in a free and democratic society.

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What is section 7 of the Charter?

“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.”
Three rights: life, liberty, security of the person
These rights can only be violated in accordance with principles of fundamental justice

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What are the principles of fundamental justice?

Principles of fundamental justice are ideas that are so important that our legal system is founded upon them, and thus the government can justify depriving an individual of their life, liberty, and security of the person if it done to uphold one of them

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Principles of fundamental justice cont.

Judges can designate new principles of fundamental justice
Some recognized principles: rational connection, proportionality
Crucially, equality is not a principle of fundamental justice

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Does lack of provisions for People with disabilities violate Section 7?

Lack of provisions, especially if it leads to being forced to live in long-term care, could be a violation of both liberty and security of the person
Argument: People with disabilities have section 7 rights, which include rights to government provisions
However, this would require Section 7 to be interpreted as a set of positive rights, not negative rights

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Positive vs negative rights

Negative rights are rights to be free of interference (e.g., section 7 protects the security of an individual person from being interfered with by the government)
Positive rights are rights to receive benefits from the government to protect certain interests (e.g., section 7 guarantees a certain amount of social assistance that will protect my security of the person)
Courts have been resistant to an interpretation of section 7 that includes positive rights

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Section 7 caselaw related to positive rights

Lacey v British Columbia, plaintiff argued that he should be entitled to social assistance in BC despite not fulfilling one of the requirements, otherwise it would threaten his section 7 rights
Court held that section 7 could not be interpreted so widely as to include economic interests and also that he did not have the authority to appoint an independent body to determine how much social assistance he should be entitled to as this would be usurping the legislature’s authority

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Section 7 caselaw related to positive rights

New Brunswick (Minister of Health & Community Services) v G. (J.), the appellant claimed that being denied access to legal aid for their custody application was a violation of their rights under section 7.
The Supreme Court held that refusing access to legal aid in this instance did violate section 7, but they decided to leave the policy that violated section 7 intact in order to “refrain from intruding into the legislative sphere beyond what is necessary”

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The Gosselin majority

In Gosselin c Quebec (Gosselin), a class action suit brought on behalf of Quebecers who were forced to receive reduced social assistance based on their age.
The majority of the Supreme Court did not hold that a positive obligation to sustain life, liberty, or security of the person could be found in section 7 based on the merits of the case in front of them, but they did not discount the existence of this obligation in special circumstances.
Articulates a limited vision of section 7

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The Gosselin dissent

In dissent, Arbour J. held that section 7 did include a positive dimension

the right to a minimum level of social assistance is clearly connected to life and security of the person
a limited reading of section 7 reduces it to the function of preventing capital punishment
that positive rights are inherent to the Charter’s structure

An expanded vision of section 7

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A limited vision wins out

In Grant v Canada (Attorney General), a class action brought on behalf of a First Nations whose members were brought into contact with toxic mould because of a government decision.
Cullity J. of the Ontario Superior Court held that: “The claim that section 7 imposes a duty on the Crown to provide housing, to protect the health of on-reserve individuals, and to respond adequately to situations where this is threatened, is obviously far-reaching.”

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Part 2: Conclusion

Section 7 of the Charter is unlikely to be a source for the OwD right to provisions because it has been interpreted in a limited manner that does not extend to positive rights, and courts are wary of intruding on what they see as the legislature’s jurisdiction
Using the Gosselin dissent, there may still be a way to push the courts towards an interpretation of section 7 that includes positive rights
Additionally, equality may be adopted as a principle of fundamental justice

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What is section 15 of the Charter and Section 1 of the OHRC?

Section 15 of the Charter and Section 1 of the Ontario Human Rights Code both guarantee OwD protection from discrimination under the law
Canadian litigation related to discrimination often references both section 15 and a provincial human rights code

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Charter section 15

Section 15: “Every individual is equal before and under the law and has a 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.”
For violations of section 15, the courts look to 1) if a law makes a distinction on a protected ground, and 2) the distinction creates a disadvantage by perpetuating prejudice or stereotyping

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Violations of Charter section 15

The equality guaranteed by section 15 is substantive

Substantive equality is a concept that acknowledges treating people the same regardless of their unique characteristics may actually generate inequality in some cases and that is important to rectify these situations as well (e.g., deaf people accessing translators in hospitals

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What is section 1 of the OHRC?

Section 1: “Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.”

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Violations of OHRC Section 1

For violations, courts look for

Individuals with a characteristic protected by the Human Rights Code who…
…experience an adverse impact with respect to a government service and….
The protected characteristic was a factor in this adverse treatment

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An argument for the right to provisions

Hypothetical plaintiff: an individual forced to live in long-term care for an extended period of time despite qualifying for ODSP
Charter Section 15 test:

Distinction based on enumerated grounds?

Disability

Distinctions creates a disadvantage?

A number of them

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An argument for the right to provisions continued

Hypothetical plaintiff: an individual forced to live in long-term care for an extended period of time despite qualifying for ODSP
OHRC Section 1 Test

Protected characteristic? Disability
Adverse impact? Forced to live in long-term care
Protected characteristic was a factor? Non-disabled persons are not forced to live in a particular place to receive social assistance

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Part 3: Conclusion

Strongest argument for a right to provisions
Still an uphill battle

Courts resistant to positive rights
Courts reticent to be seen as “legislating from the bench”
Wide ranging implications

Strong case in Nova Scotia

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In Summary

People with disabilities have been systematically discriminated against in terms of housing and inclusion for many years.
Government aid will be required to prevent this discrimination.
The CRPD, Charter of Rights and Freedoms, and Ontario Human Rights Code all contain language that arguably guarantee a right to provisions for People with disabilities.
Based on my analysis, section 15 creates the strongest argument for a right to provisions.