A Constitution for the Disabled or a Disabled Constitution? Toward a New Approach to Disability for the Purposes of Section 15(1)

Abstract

Despite important gains, people with disabilities continue to face significant barriers to wealth, labour, health services and education in Canadian society. This is a complex problem in need of a complex solution. Part of the challenge is formulating an approach to legal, political and social reform that focuses on effective institutional change. The Canadian Charter of Rights and Freedoms has an important role to play in this movement toward change. But there are problems with the Supreme Court of Canada's approach to disability rights in section 15 of the Charter. This article offers a new approach.

Drawing upon recent disability theory, the author argues that the present constitutional definition of disability is based on problematic and outdated models. Instead, the author advocates the Universalist understanding of disability, which attempts to demystify the concept and undermine the assumption that it applies only to small but homogenous categories or groups of people. Linking the Universalist theory of disability to the concept of substantive equality, the author outlines the analytic framework for a new universalist approach to disability in the Charter.

Keywords: equality, disability, disability theory, bickenbach, universal, constitutional law, labor laws, universalist, section 15(1), Charter, rights, disability rights, disabled, constitution, constitutional, health law, law and society, social theory, handicapped, law reform, legal rights

JEL Classification: I1, K19, K32, K33, K39, K41