An “Individual” Problem?
Many consider a disability as a medical problem that is specific to an “individual”. A doctor would be able to assign a “category of disability” to a person and propose treatment with the objective of “repairing” the “individual” medical problem.
For a long time, individuals living with a disability were condemned to playing a passive role in society, and to be dependent on government aid in order to meet their daily needs. Indeed, most people do not believe that individuals who are deaf, blind or who use a wheelchair can live autonomously, hold a job and live an active and productive life according to social norms and expectations. [1].
Disability is not an individual problem
In the 1960s, individuals living with a disability in the United States began to talk about civil rights. Going to school, using public transportation, and managing one’s finances, were not common daily activities for a person living with a disability. It was at this moment, inspired by the fight against sexism, racism and other forms of discrimination, that people with disabilities began talking about their civil rights.
The first defenders of the rights of people living with a disability highlighted that the problem was not “individual”. Difficulties arise when the environment is not created to meet the diverse functional needs of a community; there are a number of ways to get around, to learn, to communicate, and to understand the world.
Their ideas became widespread and were further elaborated from the point of view of individuals living with a disability who, having the opportunity to develop their full potential in post-secondary studies, created a strong argument to defend what we have come to know as the “social model of disability”.
The acceptance of functional diversity is still in its early stages in the world. The United Nations Convention for the Rights of Persons Living with a Disability was only adopted in 2006 and available for signature in 2008. Canada ratified the convention in 2010 and new generations now have the responsibility of insuring that the principles of the Convention are respected.
In Quebec, the policy “in its own right, for a true exercise of the rights of disabled people” establishes the conditions for promoting equality of opportunity in everyday life, including education. As individuals, we have the responsibility to defend our rights, but also the opportunity to collectively build a society that is able to accommodate functional diversity.
Categories of Disability
After creating the Participation and Activity Limitation Survey (PALS), Statistics Canada established 11 different kinds of disabilities:
- Hearing
- Vision
- Speech
- Mobility
- Agility
- Pain
- Learning
- Memory
- Psychological
- Intellectual
- Other [2]
The Courts’ definition of “Disability”
The definition upheld by the courts must be considered before looking at the definition in a dictionary or that of another organization (World Health Organization for example), even the definition provided in the Convention on the Rights of Persons with Disabilities.
Court Definition
The term “disability” was examined and analyzed in terms of articles relating to equal rights in the Canadian Charter of Rights, the Quebec Charter and the Canadian Human Rights Act. It is a definition with a large scope that allows the applicant (including the person being sued) to assert his/her rights.
Contrary to what many may think, the notion of “disability” is much more than a functional limitation. According to the courts, the term “disability” refers to:
- physical or mental disabilities [3];
- real or perceived [4];
- permanent or temporary [5].
Thus, the term “disabled” includes limitations that are not necessarily functional disabilities.
However, this definition can include “Various conditions such as congenital physical malformations, asthma, speech impediments, obesity, acne […], HIV, depression, personality disorder, diabetes, chronic pain or fibromyalgia, epilepsy, eczema, alcoholism or drug abuse […]”[6]
Definition of Disability according to the United Nations Convention on the Rights of Persons with Disabilities
First Article
OBJECT
The current Convention aims to promote, protect and ensure full and equal enjoyment of all human rights and fundamental freedoms by persons with disabilities and to promote respect for their inherent dignity.
By person with a disability we include persons with a physical, mental, intellectual or sensorial impairment from which a number of barriers may hinder their full effective participation in society on an equal basis with others.
[1] http://www.thecanadianencyclopedia.com/PrinterFriendly.cfm?Params=f1ARTf0002310
[2] http://www.statcan.gc.ca/cgi-bin/af-fdr.cgi?l=fra&loc=/pub/89-628-x/89-628-x2007003-fra.pdf
[3] Commission des droits de la personne et des droits de la jeunesse c. Institut Demers Inc., [1999] R.J.Q. 3101(T.D.P.Q.).
[4] Québec (Commission des droits de la personne et des droits de la jeunesse) c. Montréal (Ville); Québec (Commission des droits de la personne et des droits de la jeunesse) c. Boisbriand (Ville), [2000] 1 R.C.S. 665, par. 81.
[5] Granovsky c. Ministre de l’Emploi et de l’Immigration du Canada, [2000] 1 R.C.S. 703, 732 (par. 53).
[6] Christian Brunelle, « Les droits et libertés dans le contexte civil» dans Droit public et administratif, Collection de droit 2009-2010, École du Barreau du Québec, vol. 7, 2010, p. 62-63.