(Disponible en français : Législation fédérale concernant les personnes handicapées : la situation actuelle)
A Move towards a Canadians with Disabilities Act
While there is currently no overarching federal disability legislation in Canada, the idea has garnered attention for decades. Many voices, including a parliamentary committee, a federal task force, and advocates have called for legislative action to remove barriers to full participation and ensure the equality of people with disabilities.
At the provincial level, the legislatures of Ontario, Manitoba and Nova Scotia have enacted legislation with the purpose of establishing mandatory standards to eliminate barriers to accessibility in various areas of daily living. This legislation does not limit or replace the requirements under provincial human rights codes or other laws.
Following a commitment made in Budget 2016, the federal government launched a consultation process with Canadians to “inform the development of planned legislation that will transform how the Government of Canada addresses accessibility.” Amongst the key messages identified in the report on the consultations were that the new federal accessibility legislation should:
- lead to more consistent experiences of accessibility across Canada;
- include monitoring and enforcement mechanisms;
- apply to all areas under federal jurisdiction; and
- change the existing culture regarding accessibility and people with disabilities.
The introduction of federal accessibility legislation (“An Act to ensure a barrier-free Canada”) is expected to benefit not only people with disabilities but also their caregivers. In a society where approximately 3.8 million Canadians aged 15 years or older have reported living with disabilities that limited their daily activities, any legislative reform is likely to have a major impact from coast to coast to coast.
Current Federal Legislative Framework
At the federal level, two important laws prohibit discrimination against a person on the basis of disability: the Canadian Charter of Rights and Freedoms (the Charter), which is embedded in the Constitution Act, 1982, and the Canadian Human Rights Act (CHRA).
In addition to these, there is a patchwork of federal legislation aimed at protecting the rights of persons with disabilities across several policy areas, such as employment and income security. Canada is also bound by international law to ensure its domestic legislation protects the rights to equality and non-discrimination of people with disabilities.
For the most part, this legislative framework is complaint-based. As a result, people with disabilities often have to wage separate legal battles in order to have their rights recognized.
A. Canadian Charter of Rights and Freedoms
Under its equality rights provision, the Charter guarantees “equal protection and equal benefit of the law without discrimination” based on a series of enumerated grounds, including mental or physical disability. As the Charter applies to all government action across all Canadian jurisdictions, governments are prohibited from discriminating based on any of these enumerated grounds through their laws and/or programs, to such reasonable limits as can be justified in a free and democratic society.
At the same time as it protects equality, the Charter also permits proactive measures aimed at ameliorating the conditions of disadvantaged individuals or groups, including those with mental or physical disabilities. For example, programs seeking to improve employment opportunities for people with mental or physical disabilities may be protected under the Charter.
Individuals whose Charter-protected rights or freedoms have been infringed or denied may apply to a court or tribunal of competent jurisdiction, such as the superior courts of each province, to obtain a remedy.
B. Canadian Human Rights Act
The CHRA protects Canadians from discrimination when they are employed by or receive services from entities under federal jurisdiction, based on a series of enumerated grounds. One of such grounds is disability, defined under the legislation as “any previous or existing mental or physical disability and includes disfigurement and previous or existing dependence on alcohol or a drug.”
Discriminatory practices prohibited under the CHRA include:
- denying someone goods, services, facilities or accommodation;
- following policies or practices that deprive people of employment opportunities;
- paying men and women differently when they are performing work of equal value; and
- harassing or sexually harassing someone.
Employers and service providers have a duty to accommodate individuals protected under the CHRA to avoid discrimination unless, for example, there is a bona fide (good faith) occupational requirement or justification. In this case, it must be established that accommodation would impose undue hardship on the employer or service provider, considering factors such as health, safety and cost.
The Canadian Human Rights Commission assists in the resolution of discrimination-based complaints, 59 per cent of which related to disability in 2017, referring those cases that cannot be settled or that require further examination to the Canadian Human Rights Tribunal. The Commission also works with federally regulated employers to ensure compliance with the Employment Equity Act.
C. Additional Examples of Disability-Related Legislation
Convention on the Rights of Persons with Disabilities
At the international level, Canada ratified the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in 2010. The CRPD protects the rights to equality and non-discrimination of persons with disabilities, outlines key steps and actions that States Parties should take to ensure rights are enjoyed by persons with disabilities on an equal basis with others, and calls on States Parties to ensure non-discrimination for persons with disabilities in a number of areas.
Canada, however, has yet to ratify the CRPD’s accompanying Optional Protocol, which establishes procedures to strengthen the implementation of the CRPD, though it has recently taken steps in this regard.
Statistics Canada, “A profile of persons with disabilities among Canadians aged 15 years or older, 2012,” 15 February 2017.
Andre Barnes and Erin Virgint, “The Legislative Process: From Government Policy to Proclamation,” Publication No. 2015-52-E, 1 September 2015.
Julian Walker, “The United Nations Convention on the Rights of Persons with Disabilities: An Overview,” Publication No. 2013-09-E, 27 February 2013.
Laura Barnett, Julia Nicol and Julian Walker, “An Examination of the Duty to Accommodate in the Canadian Human Rights Context,” Publication No. 2012-01-E, 10 January 2012.
Author: Mayra Perez-Leclerc, Library of Parliament