The Convention on the Rights of Persons with Disabilities: beginning to examine the implications for Canadian lawyers' professional responsibilities.

AuthorKaiser, H. Archibald
PositionGiving Voice 2: Advocacy & Mental Health

The United Nations Convention on the Rights of Persons with Disabilities^ (hereafter the CRPD or the Convention) should herald a new epoch in the way persons with disabilities are treated throughout the world community. The entire panoply of ramifications of this Convention, the purpose of which is "to promote, protect and ensure the full enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity", (Article 1) is as yet unascertainable. However, States Parties must "take all appropriate measures to eliminate discrimination by any person, organization or private enterprise" (Article 4 (1) (e)), among other obligations. For the self-governing legal profession, the primary responsibility for ensuring compliance falls to its individual members, its law societies and its federations. This mission is critical in order to demonstrate that lawyers avoid discriminatory "customs and practices" (Article 4(l)(c)) and it is incumbent upon the profession as it continues to fulfil its essential role as an unwritten pillar of the Canadian constitution in upholding the rule of law.

This article provides a small contribution to the extensive self-examination mandated by the Convention for the bar. It offers a brief overview of the CRPD in order to introduce its rich array of novel measures. The paper spotlights principles of professional ethics which are implicated by the Convention and identifies other areas of governance and policy wherein lawyers should consider its effects. The article then endeavours to articulate features of the moral dimension of legal professionalism which must be reconfigured in the wake of the Convention, The exhortations of the CRPD for lawyers seem daunting, but the prescribed reforms are both socially responsible and long overdue; The concentration herein will be on persons with long-term "mental" or "intellectual" impairments (Article 1), who experience discrimination and stigma most acutely, as exemplified by the readiness of society and the legal system to intrude upon their autonomy, remove their capacity for decision-making, permit forcible interventions and confine them to "live in conditions of poverty" (Preamble (t)). However, most of the following comments would apply to other persons with disabilities who have "physical" or "sensory impairments" (Article 1).

Introducing the CRPD: An Innovative and Ambitious International Human Rights Treaty

The reach of international human rights law has been vastly extended since the United Nations adopted the Universal Declaration of Human Rights in 1948, recognizing "the inherent dignity" and "equal and inalienable rights of all members of the human family" (Preamble, para. I). (2) Kate Parlett celebrated its impact, having transformed "rhetoric and declarations of human rights into legal rights and obligations", indeed "to occupy a more permanent place in international law and to form part of general international law." (3) Growth in rights protection occurred too slowly for persons with disabilities prior to the Convention on the Rights of Persons with Disabilities coming into effect in 2007. The CRPD, the first twenty-first century human rights treaty, was negotiated rapidly, emerging in less than five years from the inception of the deliberations of an Ad Hoc Committee in 2002. The Convention has been enthusiastically received by persons with disabilities, an outlook in keeping with "the highest level of participation by representatives of civil society, overwhelmingly that of persons with disability and disabled persons organizations, of any human rights convention in history." (4) This substantial involvement in the formulation of the CRPD by persons with disabilities has influenced its content and will shape the ensuing processes of implementation and monitoring.

Whether the CRPD creates new rights or merely connects general international human rights law to people with disabilities has been debated, but no one doubts that its cumulative effect should be enormous. Most importantly, it demands a shift away from the supposition under the medical or charitable model that disability resides in individual deficits or pathologies which must be remediated through medical or rehabilitative services. The Convention substitutes the more challenging and transformative insight of the social (or human rights or disability) paradigm, (5) where "disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others" (Preamble (e)). Law and policy must reduce discrimination and inequality, thereby removing barriers to inclusion and requiring societies to change in order to demonstrate ''Respect for difference and acceptance of persons with disabilities as part of human diversity and humanity" (Article 3(d)). To achieve this reorientation, the CRPD stipulates a luxuriant blend of preambular, purposive and principled statements, individual entitlements and social cultural and economic rights. While a close reading of the fifty articles of the Convention is demanded, what follows will set the stage for the exacting self-examination which is incumbent on the legal profession.

The Preamble situates persons with disabilities in a mixed recital of cold reality (e.g. the references to barriers to participation (k) and "multiple or aggravated forms of discrimination" (p)) and expectant aspirations (e.g. "should have the opportunity to be actively involved in decision-making processes" (o)). The overriding purpose, to promote "the full and equal enjoyment of all human rights" and "respect for their inherent dignity" (Article 1)), must always be kept in sight. The General Principles include respect for "individual autonomy" (Article 3(a)) and "Equality of opportunity" (Article (3(e)).

The CRPD imposes undertakings to adopt implementational "legislative, administrative and other measures" (Article 4(a) (a)) and to "modify or abolish" discriminatory "laws, regulations, customs and practices" (Article 4(1) (b)). The amplitude of individual rights is far-reaching, comprising "equality and non-discrimination" (Article 5), "equal recognition before the law" (Article 12), "access to justice" (Article 13), liberty, security (Article 14) and integrity of the person (Article 17), as well as freedom from "torture or cruel, inhumane or degrading treatment" (Article 15) and from "exploitation, violence and abuse" (Article 16). Interspersed within these positive and negative rights are correlative societal obligations, including the duty to raise awareness, by combatting "stereotypes, prejudices and harmful practices" (Article 8) and to ensure coverage for women and children...

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