Disability Law: Canada

In 1982, the rights of persons with disabilities were given constitutional protection in the Charter of Rights and Freedoms, part of Canada's Constitution. As constitutional legislation, the charter applies to governmental action and legislation, including provincial and federal human rights statutes. The direct impact of the charter on the day-to-day lives of individuals is relatively limited. Indirectly, however, it has a significant impact, since it provides the framework within which provincial and federal human rights statutes operate. These statutes are considered quasiconstitutional and prohibit discrimination on a number of grounds, including disability, in areas such as housing, employment, education, and the provision of goods and services to the public.

The equality rights of persons with disabilities derive from Section 15 of the charter: “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.”

The charter does permit governments to implement programs that specifically help people in those groups protected by the charter. The rights of persons with disabilities are given the same degree or protection as other enumerated grounds such as religion and race.

If a statute or governmental action is found to be contrary to Section 15 of the charter, it may continue to operate if the government can demonstrate that it is justifiable in a free and democratic society. Section 1 states: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” The onus is on the government to demonstrate that there is a significant societal justification for a distinction. A discriminatory provision may also stand if the government invokes Section 32 of the charter. That section states that Parliament or a provincial legislature may enact a declaration declaring that a statue or part of a statute will remain in effect despite the fact that it has been found to be contrary to [Page 442]Section 15 of the charter. To date, no government has invoked this power.

The charter protections are enforced through individual actions brought in court. Administrative tribunals, including labor arbitration boards, also have the authority to interpret the charter where necessary to carry out their adjudicative functions.

Remedies available to the court under the Charter of Rights and Freedoms include declaring a statute or part of a statute invalid and therefore of no force and effect. Often when this is the result, the courts will give the government time to amend the legislation so that it complies with the charter. The court can also “read in” language to the statute so that it complies with the charter. Courts may also award damages for discriminatory treatment.

As constitutional legislation, the charter must be interpreted broadly and consistent with its overall purpose. The interests of society must be taken into account and the interpretation flexible rather than rigid. The broad purposive interpretation of the charter also extends to provincial and federal human rights legislation, which is considered quasi-constitutional.

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