The Rights Of People With An Intellectual Disability
Respecting the dignity and integrity of people with an intellectual disability, like ensuring their participation in society, is not just a matter of values. They have basic rights enshrined in the Charters, legislation and policy.
This page lists the main laws and legislative provisions that address the rights of people living with an intellectual disability.
CHARTERS
The Charters are important, because they set out people’s basic rights and provide a framework for the operation of the government and its relations with citizens.
The Canadian Charter of Rights and Freedoms applies only to the government, whereas Quebec’s Charter of Human Rights and Freedoms applies to the Government of Québec and the province’s citizens.
The Canadian Charter of Rights and Freedoms is part of the Constitution of Canada and sets out basic rights for the functioning of Canada and its provinces. As a constitutional document, the Charter takes precedence over any other law, whether federal or provincial. The document therefore serves as a guide for life in society and for government action with respect to its citizens.
Equality rights
Equality before and under the law, equal protection and equal benefit of the law
15. (1) Every individual is equal before and under the law and has the 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.
Article 15 of the Charter indicates that every individual in Canada is equal under the law, without distinction based on race, religion, ethnic or national origin, colour, sex, age, or “mental” or physical disability.
As such, any citizen, regardless of ability, has the same rights as any other. This also applies to people living with an intellectual disability. They have the same rights as any other citizen, including the right to vote, work, develop and pursue their aspirations.
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The Charter of Human Rights and Freedom is a quasi-constitutional law passed by the National Assembly of Québec in 1976. Quasi-constitutional means that, while the Charter is not part of the Constitution of Canada, the courts give it precedence over ordinary provincial law. The Charter of Human Rights and Freedoms therefore takes precedence over the other laws of Quebec, but not over federal law or the Constitution of Canada.
The Charter of Human Rights and Freedoms lays out a set of rights for citizens who reside in Quebec, along with the creation of courts and organizations, such as the Human Rights Tribunal and the Commission des droits de la personne et des droits de la jeunesse.
With respect to the rights of people living with a disability, the Charter provides in article 10 that:
“Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such a right.”
As such, individuals in Quebec may have recourse to the Human Rights Tribunal and the services of the Commission des droits de la personne et des droits de la jeunesse if they believe they have been the victim of discrimination based on disability.
This means that people living with an intellectual disability enjoy the same rights as other people in Quebec. Therefore, they must not be discriminated against based on their condition.
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OTHER LAWS
The Canadian Human Rights Act, passed in 1977, prohibited discrimination based on disability. This law applies when individuals are employed by or receive services from:
- The federal government
- First Nations governments
- Private businesses regulated by the federal government, such as broadcasters, telecommunications companies, banks, etc.
The Act sets out that it is illegal to discriminate against a person living with a disability. Under this law, people living with an intellectual disability may request compensation if they are discriminated against in one of the above situations.
The reach of this law is strictly federal, but it is complemented by other laws in most provinces and territories.
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An Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration is intended to improve the social participation of people with a disability. It was passed in 1978 by the National Assembly of Québec and was amended in 2004.
The Act provides a series of measures to “secure handicapped persons in the exercise of their rights” and to improve the social participation of people with disabilities, in particular by asking Government of Québec departments and agencies to produce action plans and annual reports about measures for people with disabilities.
The Act also created the Office des personnes handicapées du Québec (OPHQ). The mission of the OPHQ is to help and support people with disabilities in their efforts with the Government of Québec and any other organization subject to the Act (such as transport companies). The Act provides in particular that “Every handicapped person […] may apply to the Office for the preparation of a service program to facilitate his social, school and workplace integration.”
“A service program may include any or several of the following elements:
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- a functional, medical and social rehabilitation program;
- a social integration program;
- educational and vocational guidance;
- a general educational or vocational study program;
- a remunerative employment.
Such a service program may be amended to take account of new circumstances.
In the elaboration of a service program and in making amendments to it, the Office must respect the free choice of the handicapped person.”
The Office des personnes handicapées du Québec is also responsible for monitoring the situation of disabled people in Quebec, as well as government policies that concern them.
While the OPHQ has a central role in the respect of rights of people with disabilities, it does not have sanctioning powers. If individuals believe their rights have been violated, they should file a complaint with other authorities. To find out more, consult the section “Filing a complaint.”
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An Act respecting health services and social services (ARHSSS) covers general principles about access to health services and social services as well as their organization.
The object of the act is:
“to maintain and improve the physical, mental and social capacity of persons to act in their community and to carry out the roles they intend to assume in a manner which is acceptable to themselves and to the groups to which they belong.”
The act sets out a number of rights for users. For example, anyone whose life or integrity is in danger is entitled to receive the care required for their condition.
“4. Every person is entitled to be informed of the existence of the health and social services and resources available in his community and of the conditions governing access to such services and resources.
5. Every person is entitled to receive, with continuity and in a personalized and safe manner, health services and social services which are scientifically, humanly and socially appropriate.
7. Every person whose life or bodily integrity is endangered is entitled to receive the care required by his condition. Every institution shall, where requested, ensure that such care is provided.”
As such, anyone, regardless of their condition, has the right to be informed of services to which they are entitled and to receive those services. This is also true for people living with an intellectual disability or another form of disability: they are entitled to be informed of the services available and to receive suitable, appropriate care.
However, these rights are subject to certain limitations. For example, the right to services and the right to choose a professional and institution are exercised with consideration for the institution’s human, material and financial resources. The law also enables institutions to choose the services they offer, taking into account their mission and the resources available. As such, if an institution chooses not to offer services due to lack of resources, there is little recourse for citizens. Therefore, the Act does not guarantee true equality among citizens when it comes to access to services.
Populational responsibility
The notion of populational responsibility (the fact that health care institutions have to adapt to the needs of the population they serve) found in the law is essentially a good idea that has become a poison gift for citizens.
While the idea to adapt services to needs seems appropriate in Quebec, the lack of guidelines about minimum services to offer creates major disparities among regions.
This is particularly problematic because citizens are supposed to be equal under the law and with respect to government action.
Despite this, the law provides recourse for citizens who believe they have been harmed, including through the Local Service Quality and Complaints Commissioner. To find out more, consult the section “Filing a complaint”
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The United Nations (UN) Convention on the Rights of Persons with Disabilities is an international convention meant to “promote, protect and ensure” the rights of people with disabilities.
Canada ratified the Convention in 2010. This means that, after consulting with the provinces and territories, the Parliament of Canada decided to have the rights and obligations set out in the Convention applied within its territory.
The Convention protects a number of basic rights of people with disabilities, including the right to equality and non-discrimination, the right to make their own decisions (“legal capacity”), the right to education, the right to health and the right to employment. The Convention also sets out the types of measures that countries should take to ensure full and equal enjoyment of rights by people with disabilities.
The UN’s Committee on the Rights of Persons with Disabilities is charged with examining the Convention’s implementation. Like other signatory countries, Canada submits a report to the UN every four years about measures taken to improve the rights of people with disabilities.
Even though the Convention is not well-known in Quebec, it is an invaluable, worthwhile instrument that helps validate and interpret the fundamental rights of people with disabilities.
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POLICIES
Adopted in 2009, the policy Equals in Every Respect is intended to increase the social participation of people living with a disability over a ten-year period. The policy targets a significant improvement in the living conditions for people with a disability, as well as a full response to their basic needs. The policy also aims for parity between people with a disability and other citizens in exercising their roles in society.
This policy addresses questions related to discrimination, exploitation, violence and mistreatment, as well as issues of poverty, education, access to information and transportation and housing.
The policy Equals in Every Respect is a reference document for Government of Québec departments and agencies. It is also used as a benchmark for the disability community, because it sets out the obligations of many players.
The evaluation of the policy, scheduled for every five years, is an opportunity to take stock of the situation of people with disabilities in Quebec. As a national partner of the Government of Québec, the Society takes part in consultations and the evaluation of this policy. Information about the evaluation of the policy is available here.
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Chez soi: le premier choix is an official Government of Québec policy that addresses all aspects of life related to in-home support. The policy aims first and foremost to ensure vulnerable people and seniors can live at home, given that “home is always the first option to consider.”
The policy puts in place a set of in-home support services, allowing people facing a loss of autonomy to stay at home, respecting their life choices.
Even though the policy is from 2003, it remains in effect and is often used by people with disabilities to request better in-home support services. It is therefore a useful document for defending one’s rights.
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The Cadre de référence en déficience physique, déficience intellectuelle et trouble du spectre de l’autisme (physical and intellectual disability and autism spectrum disorder framework) is the document that governs the organization of services in these areas. This document essentially sets out the missions and roles of each of the players in the health care and social services network. The framework does not define a basket of services for the entire territory of Québec.
When it was published in 2017, the reference framework was not well received by the disability community. It was criticized for a lack of clear definitions of concepts required to understand the document, the implementation of service episodes (with an absence of service and follow-up for people between episodes), and the lack of a real basket of services for the people concerned.
In 2018, it was still hard to understand how the reference framework would be applied, since the CISSS and CIUSSS did not yet have an implementation plan.