441-00559 (Civil and human rights)

Canada is proud to be a party to the United Nations Convention on the Rights of Persons with Disabilities (the Convention), which it ratified in 2010. In 2018, Canada acceded to the Optional Protocol to the Convention on the Rights of Persons with Disabilities, providing Canadians with an additional recourse to make a complaint to the UN Committee on the Rights of Persons with Disabilities, if they believe their rights under the Convention have been violated. In 2019, the Canadian Human Rights Commission was designated as a body responsible for monitoring the Government of Canada’s implementation of the Convention.

Canada is also committed to creating an inclusive society for all. The Accessible Canada Act (ACA), which became law in 2019, lays out the foundation for disability inclusion in Canada, with the path towards achieving a barrier-free country by 2040 by identifying, removing and preventing barriers in federal jurisdiction in the areas of employment; built environment; information and communication technologies; other communication; procurement of goods, services and facilities; design and delivery of programs and services; and transportation. In April 2022, Canada’s first ever Accessibility Commissioner was appointed to monitor compliance with the ACA and investigate complaints and Canada’s first ever Chief Accessibility Officer was appointed in May 2022 to serve as an independent special advisor to the Minister of Employment, Workforce Development and Disability Inclusion on progress on implementation of the ACA.

The Government of Canada takes its obligations under the Convention very seriously, and implements these obligations through the Canadian Charter of Rights and Freedoms (the Charter), statutes and regulations, as well as a range of policies and programs. For example, Article 14 of the Convention (liberty and security of the person) is implemented through section 7 of the Charter, which provides that “everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice”, as well as section 9, which provides that “everyone has the right not to be arbitrarily detained or imprisoned”.

In keeping with Article 12, Canadian law presumes that everyone should have the greatest possible autonomy in decision-making over matters such as health and where they live. Substitute decision-making arrangements are resorted to in only a small number of limited cases. They are considered a measure of last resort and are subject to significant procedural safeguards and judicial oversight. The determination that an individual has a need for support in decision-making, up to and including the appointment of a substitute decision-maker, is based only on evidence of the individual's actual decision-making ability, rather than on the existence of a disability.

The relevant legal regimes – including those which allow for the use of involuntary admission and treatment of individuals with serious mental illnesses – fall within the jurisdiction of the provinces and territories. These provide for extensive regulation and safeguards in order to protect against abuse and ensure consideration of the perspective and interests of the individual in question.

The Charterprovides additional protections for individuals subject to involuntary admission and treatment, including sections 7 and 9 (discussed above), as well as:

• Section 10, which provides that everyone has the right on arrest or detention: (a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
• Section 12, which provides that everyone has the right not to be subjected to any cruel and unusual treatment or punishment. 
• Section 15(1), which protects the right to equality before and under the law, and the right to the equal benefit and protection of the law without discrimination on the basis of race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability.

Canada has no plans at this time to remove its reservation to Article 12. The Government of Canada has provided funding to a number of community organizations to identify domestic challenges persons with disabilities in face exercising their legal capacity and to develop tools to help further implementation of Article 12 domestically. The Government of Canada also continues to have discussions with provincial and territorial governments on the issue of supported decision-making. However, it remains the Government of Canada’s view that maintaining the reservation to Article 12 continues to be necessary at this time.