Final Report: United Nations effort to elaborate a comprehensive and integral international convention on the protection and promotion of the rights and dignity of persons with disabilities

Council of Canadians with Disabilities

Second National Community Consultation

Ottawa, March 18 & 19, 2005

Table of Contents

Executive Summary


Since 2002, the Government of Canada had participated in the ongoing negations at the United Nations aimed at the creation of a new Human Rights treaty to protect the Human Rights of persons with disabilities. Following General Assembly Resolution 56/168 of December 19, 2001 which created an Ad Hoc Committee, Canada has been involved in each of the five meetings of this Committee, as well as supplementary regional meetings and drafting sessions.

The Canadian delegation to these meetings has emerged as a leader in the development of the draft treaty. Significant consultation with concerned federal departments, provincial and territorial governments, as well as civil society has gone into the crafting of the Canadian position and our leadership at the UN. This document is a report on the most recent round of consultation with Canadian civil society.

The meeting took place in Ottawa in mid-March of 2005, in between the fifth and sixth meetings of the Ad Hoc Committee at the United Nations. The sixth meeting is scheduled to take place from 1 to 12 August, 2005, and is expected to continued negotiations on the draft articles from where they ended at the fifth meeting on February 4, 2005. Specifically, the Ad Hoc Committee is expected to pick up the discussion at draft Article 15, which concerns living in the community, and move forward, perhaps reaching the final draft article on Monitoring.

General Observations

Participants at the Ottawa meeting, therefore, focussed their attention on these specific articles and the draft text which the committee will consider. The general feeling amongst participants was that while the current text is a very commendable effort, a good deal of work has yet to take place. Numerous instances were identified where the current text is worded very weakly, especially in comparison to the other International Human Rights treaties. Similarly, many examples were found where the draft Articles attempt to cover too many concepts or rights, and in this way fail to give full resonance to the fundamental concepts at issue.

Thus, generally there was a strong consensus that the next meetings must look closely at the text to ensure that at a minimum the language used is as strongly worded in this treaty as it is in others where similar concepts are elaborated. One example of this (amongst many) would be in draft Article 22 on the Right to Work. There was consensus that the text as currently drafted is not as strongly worded as similar provisions in the Convention on the Elimination of Discrimination Against Women (CEDAW).

Along the same lines, participants felt that many of the articles would benefit from being broken apart into separate articles. Again, an example can be found in draft Article 23 on Social Security and an Adequate Standard of Living. In discussion on this draft Article, it was clear that so many rights are at issue that a clearer elaboration would be more likely with the separation of at the two main points in the title, and perhaps a third article on Housing.

Another general observation was that some articles contained provisions which were perhaps better placed elsewhere in the text. This can lead to confusion of interpretation and a general sense of clutter in the document. One example here may be the reference to physical access in draft Article 24, concerning Cultural Life, Recreation and Sport.

Specific Issues & Recommendations for further work

  • Financial implications & undue hardship

The chapeau of draft Article 15 requires states parties to "take effective and appropriate measures" but does not elaborate on what these might be. Concerns were raised in this context also about the lack of reference to the issue of resources, and the failure to suggest some type of test, such as that of undue hardship standard.

It was noted here as well that this issue of 'level of obligation' would likely come up in other areas as well and, as such, a clear statement of the test would be important in this instance and elsewhere in the drafting process.

With this in mind, it was suggested that a useful contribution before the next Ad Hoc Committee meeting would be to develop some draft language to offer to the Canadian Delegation for consideration.

  • Children's Rights as distinct from parent's rights

Many participants felt that this area was a critical one. The recent experiences reflected in both the Auton and Latimer cases were cited as clearly pointing to the need for a separate article on Children. There was also discussion of the fact that often there are conflicts between parents and children on these issues, and, in this context, there is a need to safeguard children. The point that emerged was that it is necessary to make clear that parent's and children do not agree on things and to provide for this reality in the text.

CCD has done some commentary on the issues of over protectiveness and on the issues of adults who are still viewed as children by family and decisions made on their behalf. It was suggested that this could be used as a basis for a further discussion paper. This paper would explore, among other things, issues of children with disabilities and the values around autonomy or inherent rights that may accrue to other children in a worse position.

  • Immigration

This discussion evolved from discussion on the failure of the draft text to account for movement from country to country. Many felt that this was a very important concept to add, despite the fact that it would likely face opposition from several member states. Several participants felt that this was an issue worth following up on and one that deserved a high profile during discussions on mobility in draft Article 20.

  • Private Actors

There was a lengthy discussion on the standards to which private actors must be held and the participatory mechanisms for ensuring that people with disabilities can identify and remedy obstacles and barriers. In general, the sense was that as currently drafted they are very weak, for example language in 19 2 d, which "encourage(s) private entities to take into account all aspects of accessibility", was not felt to be sufficient to adequately protect the human rights of people with disabilities.

  • Accommodation

This discussion speaks again to the need to have the concept of duty to accommodate and undue hardship clearly spelled. It was recognized that the terminology of undue hardship that we use in Canada might not be acceptable at the UN, but defiantly some terminology to express that concept needs to be found.

Similarly, despite the affirmative language in 22 (e), that States Parties need to ensure reasonable accommodation, the other side of that should also be more clearly spelled out. That is to say, failure to "reasonably accommodate" an individual, is not only a violation of the provision, but actually constitutes discrimination itself, and this needs to be made very clear.

  • International Cooperation

Much discussion took place around the so called "other areas of cooperation," such as technical cooperation between governments, exchanges of information etc. Canada, it was pointed out, has been supporting this sort of thing through our 20-year commitment to DPI, and many felt that the delegation should build on this strong history in any future discussions.

Others felt that there should be a call for the use if a disability lens to ensure that, at a minimum, no new barriers are created, or - to put it another way - that no harm is done. Specifically, people were keen to see how the Convention could be used to refocus these sorts of efforts, and avoid causing harm.

  • Monitoring

There was a consensus around the fact that, even without necessarily having dealt with all the details, it seems clear that we could not support this convention if it doesn't have a strong monitoring mechanism. To be sure, the way that mechanism looks will involve many issues, but the initial 'bottom line' is that the Convention must have a monitoring mechanism, and it must be an effective one.

It was also suggested that it's important that CCD and other groups move quickly to put this front and centre on the agenda, and to combat any notion that this is a secondary issue. It is in fact at the centre of everything that we're talking about and persons with disabilities need to be very clear about this, the phrase "rights without remedies are no rights at all" was used repeatedly.

Welcome & Overview

Mary Ennis, CCD's National Vice-Chairperson and also a member of the International Committee, kicked off the meeting by welcoming everyone, and providing some background on CCDs involvement with the convention development process. Ennis noted that CCD has been involved since the beginning of the current process, which really commenced with passing of Mexico's motion to establish the Ad Hoc Committee at the UN General Assembly in December of 2001. CCD, she noted, has had representation at all the Ad Hoc committee meetings, as well as at regional meetings in both Ecuador and South Africa. Along with this, CCD has participated in the Working Group meeting, and had a number of other meetings with key players, both in Ottawa and at the UN in New York. CCD, she observed, has been at the forefront of Canadian civil society engagement in the Convention Development Process.

The process itself is now advancing quite rapidly, she observed. With the Ad Hoc committee now at the stage where they are drafting actual text, things are beginning to move quickly, and some suggest the Convention could actually reach final draft stage in 2006. Our purpose in this meeting, she went on to state, is not to draft the exact wording for the text. Instead, our role is to have discussion around the articles and decide for ourselves what we think should be included in them, and then provide good advice and suggestions to the Canadian delegation when they go back to the deliberations at the United Nations.

She concluded by outlining the structure of the meeting, which focuses specifically on draft Articles 15 to 25, as it is expected they will be the key agenda items at the next meeting of the Ad Hoc Committee in August of this year. This discussion, she said, would be preceded by a panel discussion designed to set the context for the deliberations to follow.

Panel Discussion

To commence the consultation, organizers convened a panel under the theme, "International Human Rights Law: Lessons learned, key issues & implications for developing an effective disability convention." The idea was to offer a context or base from which more focused debate on key issue areas could proceed. The panel was moderated by CCD International Committee member, Jim Derksen, featured four speakers, and was followed by a lively question and answer session.

Alan Kessel Director General, Bureau of Legal Affairs, Foreign Affairs Canada

Allan Kessel began by noting that for the most part the development of the international human rights framework has occurred over the past 60 years, following the Second World War and the creation of the United Nations. The process, he noted, that was strongly supported by Canada. The process was commenced with the Universal Declaration of Human Rights, adopted by the UN General Assembly December 10, 1948, which contains a combination of both civil and political rights, and economic, social, and cultural rights.

The following years led to further negotiations on these particular rights, eventually resulting in two further legally binding instruments, namely the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights (ICESCR). These, Kessel pointed out, were drafted during a period after the Second World War, which was characterized by ideological squabbling and made the negotiation and elaboration of these treaties very complex. He made the point that, "this was a volatile period, a time when human rights activists had to put their lives on the line to get the very basic things that we consider essential today."

It is important to keep in mind that as things have developed, the UN system sees economic, social and cultural rights as being in a progressive state of development, and therefore they can be addressed over time, by a process known as "progressive realization." Civil and political rights, however, are seen as rights of an individual against unlawful and unjust action of the state, and therefore very different, insofar as they are immediately realizable. For example, a state could not argue that it needed a period of time to figure our how to stop arbitrary arrest!

Kessel then moved to look at other human rights instruments, the first of which was the International Convention on the Elimination of all forms of Racial Discrimination, (CERD) in 1965. Further legally binding international instruments include the Convention on the Elimination of Discrimination Against Women, known as CEDAW, in 1979; the Convention Against Torture (CAT) in 1984, and the Convention on the Rights of the Child (CRC) in 1989, which he reminded people, Canada was very much instrumental in negotiating and bringing to being.

Importantly, Kessel pointed out that the CERD and the CEDAW do not set out new rights, but rather they target specific racial discrimination on the one hand and discrimination against women on the other in all spheres of life. The CRC does address specific issues that affect children, and in this way does create some new rights for this group. This is an important distinction to keep in mind, Kessel suggested, as we proceed with the development of the new disability treaty.

From this overview of the structure Kessel then moved to speak about reporting and monitoring mechanisms, which he noted are different under each treaty. In general, treaties require state parties to submit periodic reports on implementation progress to a UN committee set up under each treaty to review these reports; the committees are commonly known as 'treaty bodies.' This process is particularly onerous for developing countries, which often don't have the resources to meet these reporting expectations.1

Nevertheless, once reports are submitted to the treaty body, they review the report and then they ask for delegation of that particular country to come and answer key questions that have arisen with respect to the implementation. Following the review, the UN committee issues something called 'concluding observations' that summarize their evaluation of the progress, and they make recommendations and suggestions on further measures which the country might take to more effectively realize the Human Rights in question.

Like other parties, Kessel noted, Canada has had some difficulty in submitting its reports on time to these various committees, due to the extensive information that's required, particularly in Canada because we have a federal system. We actually have to get reports from the ten provinces and three territories, and they need to be fed into an overall report; so the process is difficult and time consuming.

With respect to an individual complaint's mechanism, Kessel said, the process is based on the concept of exhaustion of domestic remedies, meaning you have to have done everything possible within your own domestic jurisdiction before you can move to the international sphere. The statistics on individual complaints are interesting to note. For example since 1977, almost 1,000 communications, concerning 60 state parties, have been registered with the human rights committee. More than 2,500 a year come in. They are vetted and only the valid and appropriate ones proceed. Currently 873 reviews have been completed, with the others percolating through the system.

In summary, the aim of International Human Rights Law is to find a universal basis for certain things we can all agree upon. For example, all people want to avoid torture or execution; all people would like to enter and leave their own country. There are certain basic things that we all bring to the table, and Mr. Kessel concluded by saying that truly effective International Human Rights Law isolates those things, and gives them life in the form of an international treaty.

Allan McChesney Law Professor & External Affairs Representative, International Commission of Jurists (Canada)

Allan McChesney focused his attention on Economic, Social and Cultural Rights. He began by noting that in the age of budget cuts, governments have tended to treat these rights less seriously than they once did. Moreover, he said, Canadian courts have traditionally paid scant attention to international human rights law in regards to these rights.

He spoke also about the reduced influence of our Federal Government in this sphere with the end of the Canada Assistance Plan (CAP) in the early 1990s. With the CAP, there were some national standards in place for things like social assistance. In those days, the Federal government had more power to get the provinces and territories to comply with international treaty obligations; and in fact, Canada used to brag in our reports to the United Nations about the CAP. Reports pointed particularly to how we had some procedural standards to ensure that welfare and other social assistance met international obligations. With the advent of the Canada Health and Social Transfer (CHST), he argued that Ottawa doesn't have the kind of weight it used to and this makes accountability very difficult to enforce.

Having said that, McChesney did note some positive examples where these sorts of Rights have been enforced. He pointed to the use of non-discrimination legislation, as outlined in section 15 of the Charter, to address some of these sorts of Rights. The best example he said, is the Eldridge Case in British Columbia, which called for improvement of the way that health services are given to Deaf people, specifically by guaranteeing access to interpreters. This was not a specific right to health issue, which would be something addressed by the ICESCR, but rather the courts approached it as a Charter of Rights and Freedoms issue related to non-discrimination and equality, which is fair he suggested. Though unfortunately, this approach does not open a door to other discussion on Economic, Social and Cultural Rights.

There was also discussion about the Gosselin v. Quebec case. In this case, the Quebec Court of Appeal did explicitly say they liked the idea of using the International Covenant on Economic, Social and Cultural Rights and that the ICESCR was one of the references used to help to make the decision. Subsequently, five (of the nine) Supreme Court of Canada Justices left the door open on the specific issue of interpreting the Charter's section dealing with security of the person with reference to the ICESCR. Interestingly, the minority decision suggested that the application is already there, and that there is a basis now for use of the ICESCR. So again, McChesney suggested that the door may be opening here somewhat.

At an international level when we report officially to the ICESCR treaty monitoring body, Canada consults widely with provincial and territorial governments, and more and more with non-governmental groups as well. The extent to which Canada actually implements the recommendations, however, is debatable and many have suggested that there is need for work in this area.

McChesney wrapped up his remarks by saying that he thought it would be a very good thing if the convention on disability rights had a lot of specifics that could be reviewed by parliaments, and could eventually be referred to by courts as a way to try to influence the direction of Canadian governments, in case it takes a long, long time for courts to take them more seriously. Governments, he said, will pay attention when courts order them to do things!

Rebecca Netley Foreign Affairs Canada, Deputy Head of Canadian Delegation to Ad Hoc Committee Meeting # 5

Rebecca Netley spoke about some of the key issues in the current negotiations. She said that while she did not want to be too detailed, a certain level of detail in this sort of discussion would be needed. She then went on to say that a couple of the draft articles are proving particularly difficult to negotiate, given that some very strong views have emerged.

Netley began by outlining some more general issues, commencing with the nature and the scope of the convention. Canada's position, she stated, is that the convention should be a principle and rights-based instrument that avoids overly prescriptive or programmatic detail with a view to ensuring the widest possible adherence by states. A view that has also been advanced by CCD in the past, Canada, and most members states think that the convention should focus on ensuring the effective protection and enjoyment of existing civil, political and economic, social and cultural rights that have particular relevance for persons with disabilities. With that, she turned her attention to specific issues and articles.

  • Article 13

Most participants are like-minded on the issue of detail. However, the extent to which some states and some NGOs may want to add a lot of prescriptive detail to certain rights seems to differ, depending on which rights are discussed. The example she noted here was the negotiation on draft Article 13, concerning on the right of freedom of expression and access to information. The Working Group text has a lot of detail regarding access to media and other issues that may not be best dealt with in the context of civil and political rights. Canada has suggested a potential merging or moving of some of the issues dealt with under that article with others, such as draft Article 19 on accessibility, or draft Article 20 on mobility. This is something she asked participants to consider. Specifically, the question is whether or not to expand the article on accessibility in order to incorporate concepts currently found in draft Article 13. And, if so, what might that article contain, and how could it be kept from bring overly prescriptive?

  • Article 7

This concerns the issue of equality and non-discrimination. Canada was very keen to get a very strong article 7 and contributed much of the wording currently seen in the draft. Netley said that the key here, for Canada, was to include the concept of reasonable accommodation, or as some refer to it the duty to accommodate.

She noted CCD's preference for the phrase 'duty to accommodate,' rather than reasonable accommodation. And that the approach has not received a lot of support in New York, probably because many are not familiar with the term. Given this, Netley did not see a lot of room for change. So she asked participants to reflect on this and provide direction for the Canadian delegation. Of course, there are limits in negotiating in an international environment and you have to give and take. So the question here is: are we prepared to accept the language of reasonable accommodation?

  • Suggested progressive realization of some civil and political rights

Some states expressed concern that some of the civil and political rights discussed in the covenant require a fair amount of accommodation in order to make them effective for persons with disabilities, and in this way should be subject to progressive realization, seen elsewhere only in reference to Economic Social and Cultural Rights. The example given by Japan was voting and the fact that there may need to be room to accommodate some of the concerns that states are raising about very expensive accommodation.

Canada , said Netley, has been explicit that in no way do we see the concept of progressive realization attaching itself to civil and political rights and we would not accept that general reference for progressive realization.

  • Article 9

There are two key issues here: definition of capacity and parameters of decision making, both of which, Netley pointed out, were contentious and complex.

Canada has been appointed facilitator on this draft Article and our vision on the first issue on capacity is to draft an article that addresses more than just juridical capacity by going to a broader view of capacity and decision-making. Particularly, concerns have emerged about decision-making as it relates to property and in a medical treatment.

The Canadian delegation's way of trying to address this when we made a proposal at the third ad hoc committee was to use CEDAW, article 15, which deals with legal capacity. We tried to draw on the language of article 15 thinking they were words with which delegations would be familiar, and they provide a broader notion of capacity. However, our quoting from article 15 appeared to have been rejected at the last meeting, and now we are stuck with the phrase "legal capacity" without any context of what that might mean. There is a tension as several delegations want a limited notion of capacity because they can accept limited notions of language in the article. We would prefer a broader definition of capacity and progressive language. So the question you could think about is, if we can't get a broader definition of capacity, is it better to have no definition of capacity at all?

The second issue is the way in which the text addresses the issue of support in decision-making and, as a last resort, substituted decision-making. Canada would like to frame substitute decision-making as part of a continuum of assistance being offered to persons with disabilities. It had been our original orientation that both supported and substitute decision-making should be addressed in article nine, because to ignore the issue would leave an obvious gap in the text. That had been our orientation and it seems that our perspective is now more broadly understood. When you consider that article, Netley said, if you could look at that concept in the text, the delegation would appreciate your views on that text.

  • Involuntary treatment

The NGO caucus view, according to Netley, is that any involuntary treatment is tantamount to torture, and the committee wants to address this under draft Article 11. From a state perspective, it is unlikely to occur, because they will not likely support expanded definition of torture. So again, feedback on this issue would be appreciated.

New Zealand , she noted, has tried to address this issue by proposing a new article, titled tentatively "consent to treatment," which deals explicitly with treatment in the mental health context. The proposal (12 bis) allows for non-consensual interventions and imposes some limits. NGOs objected to its introduction, but New Zealand was trying to deal with what it felt were contentious issues by addressing them head-on and making a proposal that we could then discuss rather than have the debate as an undercurrent in a variety of articles. Opinions on this approach would also be useful.

  • Economic, Social and Cultural Rights

Netley said that Canada's general orientation is that the ESC Rights in the convention should not expand or diminish their scope as found in other international human rights instruments. This is especially important to keep in mind, she said, in terms of the principle of "progressive realization," and how it will be addressed by the new convention. The current language seems to be gaining some support, that is, language from article four of the Convention on the Rights of the Child. The latter half of article four on the convention on the rights of the child would be the kind of catch-all progressive realization reference. Views on the use of this CRC-based language would be helpful for the delegation as well.

  • Article 17

Presently, according to Netley, discussion on the right to education up to now has mainly involved NGOs, with few states contributing because of the very strong views that different NGOs have with respect to that article. The NGOs caucus has apparently come to a common position on this and she asked for feed back from participants.

  • Specific populations

This refers to the issue related to the situation of women and children. The original position of the Canadian delegation had been that there was merit in having stand-alone articles on women and children, but it now appears that many previously like-minded states, including Norway, the E.U., New Zealand, Australia, are all opposed to the idea of having stand-alone articles that address the specific issues of women with disabilities or children with disabilities.

The first objection they raise is that this should be a convention that applies to all persons with disabilities and we should not, therefore, isolate certain sectors of that population, that's the main argument. And then with respect to children with disabilities, the secondary argument dealing with the content of article 43 of the Convention on the Rights of the Child, which is the article in that convention that addresses children with disabilities, and concern about having two different sets of standards addressing children with disabilities, one in the convention on disability and one on the Convention on the Rights of the Child, and the difficulties around that.

Canada has taken a strong stand on the necessity for language about the importance of gender equality, and has suggested that equality between men and women be a fundamental principle of the convention. We have, Netley said, suggested language, and that most agree should be included in draft Article 2, on general principles of the Convention.

The Canadian delegation has also have been supportive of preambular references dealing with issues of multiple forms of discrimination. Some concern has been expressed by delegations that multiple discrimination should not be addressed explicitly in a separate article. Instead, some have suggested, that grounds of multiple discrimination be listed in the preamble as a way of addressing the issue. With this approach, gender and age would obviously be on the list, but the question is whether there should be more factors included as well.

  • International cooperation

This is article 24 bis in the current draft and it's a tricky issue and again not one where there has been a lot of discussion; although there has been a fair bit of informal discussion in the hallways at the UN. It's one where the north-south divide is very evident and it relates not so much to this Convention but to general discussion in the UN regarding interstate legal obligations to provide assistance.

Canada 's position and that of most donor countries has been that we can accept general references to international cooperation, along the lines of language use in existing human rights treaties, such as the ICESCR. The problem has arisen with the very detailed language proposed by Mexico, and now seen in the draft text as article 24 bis, it is very detailed and thus, not something that donor countries are going to accept.

That being said, Netley did think there has been some movement for technical cooperation to be emphasized, and we have certainly said we are open to some discussion on this. Canada, she noted, definitely emphasizes capacity building and technical cooperation in our assistance to countries, so there is defiantly room for looking at some of that language.

  • Monitoring

Finally, Netley spoke briefly about monitoring, which she identified as another tricky issue. Currently, the Canadian view is that the discussion on monitoring should wait until we see the shape of the convention. There is no text on the table with respect to international monitoring, only some preliminary text regarding domestic monitoring, so it is hard to tell what the status of things is at this stage.

International monitoring has not been addressed yet in the draft treaty. The Canadian hope has been that there might be some creative solution, as there are grave difficulties in the UN monitoring system, with a huge backlog. Canada is anxious to see something more creative that might prove to be effective but not as cumbersome in terms of monitoring, whatever that may be.

Steven Estey Chair of CCD International Committee & Member Canadian Delegation to Ad Hoc Meetings

Steven Estey began his remarks by making it clear that his perspective was that of an NGO person, not a technical legal expert. He noted that CCD found itself involved with the ad hoc committee process more by accident than design and much of the work has been characterized by scrambling to keep current on the issues, which has been a challenge.

Estey also noted that CCD's intention with the present panel was to give people a solid background of information about what we are doing at the current consultation and how it fits into the process taking place at the United Nations. He observed that this goal had already been met, and indicated that his remarks would therefore be brief.

Essentially the task-at-hand with this consultation, he noted, is to provide a perspective from Canadian civil society, particularly Canadian disability organizations, about the difficult issues being considered at the Ad Hoc committee meetings. He suggested that the previous speakers had outlined the core issues, and felt that before moving to specifics, it would be useful to reflect on the things that the disability community could reasonably expect from the new treaty.

In this context, Estey referred to the observation made by an earlier speaker, who said that UN conventions are a lot like glaciers in that they move very slowly, but at the same time, they have the potential to carve valleys and mountains in the geography of human rights around the world. Similarly, the new convention is not necessarily going to change things quickly or radically. Rather, what we have before us is the prospect of something that can effect long-term systemic change. Thus, we need to keep a very long term view, and this view must be reflected in the drafting process in which we are currently engaged.

Another factor to keep in mind in discussions on what the new convention should look like is that of diversity, Estey noted here that the Convention must respond to the circumstances of people with disabilities all over the world, in a variety of cultures and socio-economic circumstances. So, while we want to encourage Canadian values, we need to respect that there are other values at play in this process and need to be mindful of the fact that we can't be so forceful about the Canadian view of things that we exclude the perspective of people from other cultures and other backgrounds and so on; it's a delicate balancing act and we need to keep that in mind.

In a similar vein, Estey noted his hope that this consultation would provide guidance on areas where some groups at the UN have taken a very firm approach. He noted his concern that that by advancing a hard line view on a particular article, there is a danger that the whole discussion can get off track. For example, some of the language throughout the text is seen by many to be quite progressive and helpful. But, if the hard line approach by NGOs continues, there is a danger that all of the good work will be lost in a compromise that deletes things which cannot be agreed upon. The concern, or the question, really is; how far can we go and still get people on board, because we can have a treaty that is the most beautiful piece of disability legislation ever created on God's green earth, but if nobody signs it, then we have wasted our time.

Another related issue, Estey suggested was the extent to which the current text does or does not account for some traditional areas seen in international human rights law. For example, draft Articles 9 and 10 currently focus on issues of legal capacity and certain kinds of deprivation of liberty. This is, of course, important for people with disabilities, he said. However, the articles do not talk about other important human rights concepts in this area, such as due process of law, access to courts and that kind of thing; rights that have historically been denied people with disabilities,

To address this specific concern some NGOs and governments have called for a new article around access to justice, which appears as 12 bis in the draft text. But this sort of omission may exist elsewhere, and Estey suggested that it would be important to look at text carefully in order to be certain that it actually does cover all of the things that you expect to be covered in a Human Rights Convention.

In closing, Estey said, the point is simply that we have a document, we have text out there but that text may not be as fully fleshed out as it should be. There may be pieces that need to be brought in. And he expressed his hope that the consultation would provide the opportunity to think about this and the other important points made by all the members of the panel.

Editor's note: From the Panel discussion the meeting moved to a consideration of the draft articles expected to be discussed at the next meeting of the Ad Hoc Committee, to be held in August of 2005. The remainder of this report summarizes that round table discussion.

Draft Article 15 Independent Living & Being Included in the Community

Introduction & discussion questions:

There was some debate at the fifth Ad Hoc Committee meeting on the term "Independent Living," and concerns that it was too charged with political sentiment that was grounded in the western experience and would not translate well in other parts of the world. Reflection would suggest that the independent living movement in the West has done a lot for people with disabilities, and is of critical importance from a historical and a political point of view. The essence of the issue is that the independent living movement has played a role in allowing people with disabilities to live independently and the right to make their own decisions, and this approach, is considered to be a desirable outcome no matter the cultural context in which a person finds one's self. With this in mind, the group was asked to discuss two questions:

  1. Does the article, as it appears in the Working Group text, hold all of the components of the independent living philosophy?
  2. In the negotiations, so far, there has been some pressure to remove or reduce the comments on institutional living. Do we as an NGO community support that?


  • Institutionalization

Initially several people voiced concerns about "Paragraph 15b" and the way that it seems to presume that persons with disabilities live in institutions. This led to a discussion about a Supr2eme Court of Canada case that was, coincidentally, decided that very day. The decision related to forced institutionalization. It is a unanimous decision written by Judge Abella, and it seems positive. This was a case where a person with a disability was placed in an institution, even though a community living option was available because the government of Nova Scotia refused to fund the community living option.

It was also noted that the government facilitator on this draft Convention article ( New Zealand) had revamped the text considerably in an attempt to move away from this idea of a place of residence.3

It was also noted (during the Panel Q & A session discussed above) that the issue of forced institutionalization and treatment was of particular concern for those who have been diagnosed with psychosocial disabilities. It was further noted that the NGO caucus' call for a blanket prohibition on forced treatment and institutionalization creates a challenging negotiation environment, and that certain concepts such as the "principle of least restrictiveness" may be useful. The Government Representatives were asked how Canada interprets this concept, and whether or not the delegation could be moved to introduce this concept in the next round of negations. This question was beyond the scope of panel members, who felt that it was something that the Department of Justice would consider.

It was suggested that a discussion paper on this topic would be a useful contribution for the upcoming negotiations, and that members of the disability community should be prepared for further consultation on this item.

  • Definitions

When the disability rights community in Canada talks independent living we talk about it from a certain definition, but that is not a definition that is universally accepted. That is why there is a move to talking about living independently. Within certain contexts, the issue of independent living and community living has come to mean one sort of thing for some groups and something else for other sectors of the disability community. That is definitely a challenge we face with this kind of language, and in this article where we, even within the Canadian context, have different understandings of independent living.

It was also noted that some discussion has occurred at the Ad Hoc Committee about the phrase independent living, suggesting that the philosophy behind it is something that resonates very nicely here in North America and some western countries but does not translate well in other places. The concern is if you use that phrase it is almost like trying to take the western approach of disability integration and farm it out more widely, so the suggestion was to stay away from the phrase and retain the concept.

  • Financial implications & undue hardship

The chapeau requires states parties to "take effective and appropriate measures" but does not elaborate on what these might be. Concerns were raised in this context also about the lack of reference to the issue of resources, and the failure to suggest some type of test, such as that of undue hardship standard. The Fernandez Case in Manitoba was cited as an example.4 Participants felt a need for clarity regarding the level of obligation to provide support for living in the community.

It was noted as well that this issue of levels of obligation would come up in many other areas as well and, as such, a clear statement of the test would be important in this instance and elsewhere in the drafting process.

With this in mind, it was suggested that a useful contribution before the next Ad Hoc Committee meeting would be to develop some draft language to offer to the Canadian Delegation for consideration.

Draft Article 15 bis Women with Disabilities

Introduction & discussion questions:

As was pointed out during the panel discussion the issue of separate articles for women (and children) has come up for debate in the Ad Hoc Committee meetings. The parameters of this debate are set out in this report in the section above covering the panel discussion. For discussion purposes, the following two questions were put to the group:

  1. Should we continue to support the stand alone article on women with disabilities or is there an even better way to ensure that their unique issues are addressed and their rights upheld in the convention?
  2. And, if we believe that a stand alone article is critical, what should we be thinking about including in it?


The discussion commenced with a note that DPI is planning to commission a paper on this issue before the next Ad Hoc Committee meeting. The approach being contemplated would begin by making a list of all of the unique issues for women. The list would then be compared to the existing draft articles of the convention and an analysis would be done to see whether, or not, the unique situation for women with disabilities is covered effectively in the current draft. Based on this sort of analysis, DPI would expect to be in a better position to determine the need, or lack thereof, for a separate article on women.

This in turn led to a discussion on several areas which participants felt would be essential to address in such a paper, they are:

  • Maternal health
  • Reproductive health
  • Forced sterilization
  • Family life, including adoption
  • Violence and abuse

Also as part of this discussion, a level of caution was encouraged, in order to avoid listing current issues of women with disabilities and failing to consider emerging issues. While it is obviously impossible to predict the future, it was suggested that a list of this sort should be kept at a fairly general level as details related to biomedical, bioethical and reproductive issues change so quickly with the advent of new technology, so that too much detail would lead to an article that was quickly out of date, and would therefore not be likely to attract much support in the negotiations.

The group agreed that it would be important to continue this discussion and was interested in getting a copy of the DPI paper and having some separate discussion amongst Canadian women with disabilities.

Draft Article 16 Children with Disabilities

Introduction & discussion questions:

During the panel discussion, there was reference to this draft Article and the issue of its harmonization with the Convention on the Rights of the Child (CRC). The point was made that some states will be reluctant to have two sets of standards, one in the CRC and one in the new Disability treaty. As presently drafted, the article does actually incorporate much of the language seen in Article 23 of the CRC, where the reference to disability does occur.

By way of further introduction on this draft, Article participants were asked to consider that the Ad Hoc Committee has had very little discussion on the issue to date. Moreover, the current text acknowledges that duplicating article 23 (of the CRC) may not adequately deal with the issues of children with disabilities. The committee has been asked (in a footnote to the working group text) to revisit this article so it covers issues of children with disabilities which have not been dealt with elsewhere in the convention. Examples could include the vulnerability of children with disabilities to sexual abuse and exploitation.

Participants were also advised that CCD does not have a policy on children's issues. But that our colleagues at CACL deal with these issues all the time, and from their experience, they have chosen to advocate for the inclusion of an article specific to children with disabilities.

CACL believes that children with disabilities face unique vulnerabilities which will be best addressed by a specific article. For example, there are issues around evolving legal capacity where children do not have the same rights as adults throughout the convention. So for this and other reasons CACL believes that there does need to be something in the new treaty that can recognize the rights of children with disabilities, and protection for some of the unique vulnerabilities that they may face. In this context, two discussion questions were proposed:

  1. Whether or not there are new issues, for children with disabilities that are not addressed in the CRC?
  2. And, if so, should those be covered in a stand alone article, like draft Article 16?


  • Children's Rights as distinct from parent's rights

Many participants felt that this area was a critical one. The recent experiences reflected in both the Auton and Latimer cases were cited as clearly pointing to the need for a separate article.

Following from this discussion there was also a lengthy consideration of the fact that often there are conflicts between parents and children on these issues, and, in this context, there is a need to safeguard children. The example was given of over-drugging of children, which has become a significant issue in many western countries. There are increasingly cases where we are seeing these issues of the use of drugs as requirements for access to some services, including going to school. The point that emerged from the debate was that it is necessary to make clear that parents and children do not agree on things and to somehow provide for this reality in the article.5

  • Harmonization

Participants then moved to an interesting discussion on the issue of harmonization with the CRC, as outlined above. It was noted that some international DPOs have been working on this and a good example of where it could prove challenging has emerged. One of the things that CACL and others have been discussing in regard to this draft article is the idea that children with disabilities should not be obliged to live in institutions. But it turns out that the CRC offers no such guarantee for children. So to advocate for this would in effect result in the creation of a new right, the right not to be institutionalized.

The concern is that to push for new rights will mean that states will not be prepared to sign and ratify the convention, so the challenge here is to frame the discussion on this sort of thing in terms of the expansion and clarification of existing rights where ever possible, so that movement is seen as incremental and not a significant expansion.

At the same time, some felt that Canada should be urged to take a position that the CRC wasn't in any way a maximum, it didn't set a maximum beyond which we can't go. In this way, some felt that CCD could take a strong position that we are in no way bound to mirror the convention on the rights of the child, we are absolutely free to improve upon it.

No clear consensus on the approach was achieved and perhaps the suggested position paper should attempt to bring some resolution to the issue. It was pointed out by one participant that the starting point from which much of this work begins is the 2002 research paper by Gerard Quinn and Theresa Degener which says that the problem is the lack of visibility of disability in the UN system.6 So in this context this idea has been well let's make sure that people with disabilities enjoy existing rights, rather than seek to create new ones.

  • Concern about "comparative language"

The text in the draft article 16 at the beginning, where it says "shall enjoy the same rights and fundamental freedoms as other children" causes concern for some who preferred language that stated the right more substantively, for example, "shall ensure that children with disabilities enjoy a full and decent life and conditions that ensure dignity and promote self-reliance and autonomy." This approach leaves out the comparison to other children, and states the right more clearly.

Draft Article 17 Education

Introduction & discussion questions:

It was noted that the text of the Working Group Draft is very long and detailed, but that it does strike a good balance, with emphasis on inclusive education, while leaving the door open for specialized education or specialized systems.

This is the key tension within the article, and indeed with the debate around education for persons with disabilities around the world. Some groups are advocating for fully inclusive education and nothing else, others are advocating for what they call in specialized systems, and some others want a hybrid of one sort or another. The two questions used to commence the discussion were:

  1. What is a good compromise between these approaches; and, has this text struck an appropriate balance?
  2. Another related issue is the concept of choice. Freedom of choice, and real choice, not a forced or imposed choice, is at the root of the debate here, so the essential question is does the text effectively promote this freedom?


  • Expanding view of education

Part of the concern was moving away from the primary education focus seen initially and moving to encompass secondary education and to keep in mind that this is a continuum or what some refer to as "life long learning." There is a need to recognize that the article must account for more than just the education of children, and it may in fact need to be linked somehow to the draft Article 22 on "the Right to Work." Some concerns were brought up about moving beyond 'pure educational' requirements and including things that are related to the educational environment, such as extracurricular activities, co-op work terms and other issues that link directly to employment.

There was also discussion in this context about the need to reference post-secondary education specifically in order to expand the focus beyond children and basic education. Moreover, it was noted that neither in this draft article, nor in draft Article 22 do we see concepts related to the transition between school and work. It becomes increasingly common for part of one's training to be undertaken as part of work, for example in a work placement, or other forms of apprenticeship; and many participants felt strongly that the text needs to account for this reality, either at this point or in draft Article 22.

  • Disability-related accommodation

While recognizing that the current text is very programmatic in nature, and therefore likely to change, it was the consensus that if the list of accommodations in paragraph 2b is to be maintained, then some others items should be added. Participants spoke specifically about personal attendants for people with physical disabilities and appropriate testing for people with learning disabilities. One participant put it this way:

Perhaps some specific reference to testing might be helpful … unless we identify varying individual learning capacities or some such term to make sure we include that community, that they will benefit from this article in the next several decades since they are not really widely or globally understood as being people with disabilities. Yet in the context of education, they are perhaps the most disabled because it is that tradition and rigidity of that traditional system that create barriers for people with that learning ability or capacity. So I think the challenge is to make sure that this group is recognizable in this article as we draft it.

A separate issue was also raised in relation to the reference in paragraph 4 to Sign Language, which seems to be treated as an accommodation. Yet, from the perspective of deaf culture one would talk about it as language, you would talk about it as culture, not as an accommodation. So it may be useful to consider removing Sign Language from this Paragraph.

  • Attitudinal Barriers

There was discussion too about the need to specifically address negative attitudes (on the part of teachers) in this article. It was pointed out that draft article 5 focused on attitudes, and that many states would contend that this was sufficient. Nonetheless, some participants felt that special mention was still warranted here, due to the extremely influential role teachers have on young children with disabilities.

  • Links to existing treaties

Consideration should also be given to what other conventions say about the right to education. The Convention on the Rights of the Child (CRC) does talk about educational vocational information and guidance counselling being available to all children; so that may be a useful reference, which could provide the kind of language that we could build upon and make sure that is the right for people with disabilities.

Another area where we may wish to look for guidance on this issue could be the International Labour Organization (ILO) or UNESCO where we might be able to borrow some helpful language to expand on some of the concerns outlined above.

Draft Article 18 Participation in Political and Public Life

Introduction and Discussion Questions

This topic was introduced with a discussion about the dearth of persons with disabilities who are elected political representatives in Canadian politics. While some examples of involvement at the local level can be seen across the country; such involvement at the Provincial or Federal level remains extremely limited. Moreover, where this does happen, those elected are often expected to fulfill the role of "Poster Person."

There was also a discussion about the situation in some countries with different electoral systems (proportional representation systems) where disability was one of the groups considered in the reckoning of the proportions. In this way, a certain number of seats in the legislative assembly were dedicated to disability, as with other equity-seeking groups in the community.

In this context, the group was asked to consider two questions to commence the discussion, these were:

  1. How can the article help address systemic barriers, so that people with disabilities can participate in the actual political functioning without having to be poster people.
  2. What do you think of the model of guaranteed seats?


  • Guaranteed seats

With the approach of guaranteed seats, one participant was able to describe the situation in South Africa as a detailed example. The following is from the transcript of that comment:

When I was in South Africa in '99 doing my internship, I worked for the seven parliamentarians with disabilities. They had just come into office … the disability movement has been very strong and powerful in South Africa and closely linked to the ANC. When the ANC came to power, they chatted with all the people who helped them out, one was the disability community, and they said you could have so many seats …

Of course the (electoral) system there is a proportional representation type system, so it is basically strength of the parties, would predominate, so the ANC not only can have so many seats and make so many available to certain communities. I think it was a good thing because it got people used to the mindset of having people with disabilities in these positions of power. There weren't any problems that it seemed to be a well-accepted thing to do; and, yeah, they had a quite a few successes a lot of people were active in their communities, they were quite well known. I even suggest some of them are celebrities. So it just wasn't even a question that got people into the mindset and I think the problem in Canada is that we don't run the Proportional Representation (PR) system, we don't have party lists. Instead we have the first past and the post system, so we have to go through the whole system of having the money to run, getting the proper people to back them, going into the election, getting involved in the whole political process, which even in Canada, I think, is in many ways inaccessible. So how that relates to other parts of the world I am not sure, but a PR system lends itself well to doing this kind of thing whereas our system makes it a bit tougher …

  • Need for stronger language

Aside from the issue of holding office, it was noted that this article speaks to the issue of ensuring that persons with disabilities and their organizations participate on an equal basis to others in all decision-making process, in particular issues relating to those with disabilities. There was a suggestion that the language should be stronger, and the point was made that the 1981 World Program of Action document had language that was stronger.

Another issue what was highlighted was that of the deprivation of voting rights for some people who live in institutions. It was noted that in Canada we have had to fight the situation of those within institutions, those with psychiatric disabilities, those within criminal justice system being deprived of right to vote.7

  • Call for accountable governance

Some participants spoke about the idea of including the concept of a parliamentary committee in this article. The idea would be to ensure the establishment of a domestic parliamentary body that would be tasked to hear directly from people with disabilities and their organizations about important issues.

Others suggested that the scope of such a committee could go even farther and that the body could be tasked to produce an annual report, and that this could be linked, perhaps, to the larger monitoring structure of the treaty itself.

Draft Articles 19 & 20 Accessibility & Personal Mobility

Introduction and Discussion questions:

The first issue in this discussion is an organizational one, as was noted by members of the panel at the beginning of the meeting: to what extent should information from draft Article 13, which deals in part with specific disability technologies and terms of access to information, be moved into this draft Article? Similarly, with draft Article 20 (on personal mobility), there is a good deal of overlap and it may be useful to consider moving this language into draft Article 19 as well. For this reason, the decision was taken to consider them together.

The other area of concern is that the article, as it is currently drafted, ignores the broader liberty of movement issues. If this is not corrected, the convention will fail to consider some very real problems that persons with disabilities have in regard to being able to move from one nation state to another. This includes, for example, immigration, the ability to carry passports and other documents that allow for mobility as it is generally understood, the right to a nationality, the right to change it, so on. Clearly, these issues ought to be addressed. What is less clear is whether this should be done together with concepts such as general accessibility, including technical aids and other things that assist in personal mobility.

Perhaps it makes sense then to consider focusing this article on Access, including technical aids and devices and services, so that draft Article 19 is getting to be a catch-all for access related issues, from draft Articles 13 and 20. In this way, the drafters would have room elsewhere to effectively address the other issue of mobility rights.

By way of summary then the two questions put to the group to commence the discussion were:

  1. Should the draft Article be restructured to incorporate elements of other draft articles which relate to access, such as technology and personal mobility?
  2. How should we suggest addressing are as which are not currently considered, such as immigration, etc.?


  • Encompassing a wider understanding of disability

There was a discussion about the need to differentiate the concepts of 'portability' and 'mobility' (especially as it is conceived in draft Article 20, which could well be absorbed into a revised Article 19). In Canada, the term 'portability' refers to the idea of being able to access the same sorts of disability-supports no matter the jurisdiction of one's residence. Whereas 'mobility,' especially as elaborated in draft Article 20 focuses on mobility impairments and ways to ameliorate them.

  • Immigration

This discussion evolved somewhat into a related discussion on the failure of the draft text to account for movement from country to country. Many felt that this was a very important concept to add, despite the fact that it would likely face opposition from several member states. It was noted that at CCD's previous consultation this issue had been raised as well, and that the Montreal - Based NGO called the Multi-Ethnic Association for the Integration of Persons with Disabilities had produced an excellent paper on this issue for the Racism Conference in Durban, South Africa, in September of 2001.8 Several participants felt that this was an issue worth following up on and one that deserved a high profile during discussions on Mobility.

  • Private Actors

There was a lengthy and involved discussion on the standards to which private actors must be held and the participatory mechanisms for ensuring that people with disabilities can identify and remedy obstacles and barriers. In general, the sense was that as currently drafted they are very weak, for example, language in 2d, which "encourage(s) private entities, to take into account all aspects of accessibility" was not felt to be sufficient to adequately protect the human rights of people with disabilities.

It was suggested that the issue of accessibility, if it is framed in this section as a component of social and economic rights would be subject to progressive realization standards, and in this way very vague, which people felt would be a mistake. With this in mind, reference was made to Section 2 (d) which many felt offered the opportunity to be more transparent in the way in which the right is to be determined, with the full participation of people with disabilities, and with full private actor accountability. In the same vein, and by way of example, one participant noted that issues of access are linked to the right to work, and that as it is currently framed, the draft Article suggests that only government buildings need to be accessible and, therefore only governments would provide accessible work places. This, they argued, would be totally unacceptable.

From this discussion, participants expressed the view that draft Article 19 overall presents an opportunity to strengthen the understanding and obligation for disability-related accommodation, and that as currently drafted, the text does not achieve this important end.

It was noted that a likely argument against strengthening these provisions would be that some delegations of other countries have said to us that we can't require governments to force private enterprise to do certain things through an international treaty. Nonetheless, participants felt strongly that Canadian delegation should push for stronger language. Indeed many felt that this must be emphasized, precisely because it is very often in the private sector where people with disabilities most often experience obstacles.

Moreover, it was pointed out that many UN member states (like the United States, Canada, most of Europe, Australia and, many others) currently do incorporate laws that require private sector facilities to be accessible to certain standards, and certainly, the new Convention should not suggest anything less.

  • Organizations of Disabled People

Draft Article 19 (2) (g) ensures the organizations of persons with disabilities are consulted. This concept was suggested by some to be a more generic or cross-cutting issue which would be better placed more prominently. There was a concern that a slight reference in one article could inadvertently weaken the importance of the concept. Thus, it may be more effective to consider a more detailed elaboration of this concept elsewhere, perhaps in draft Article 4 on General Obligations.

  • A structural suggestion

With respect to the problem of the detailed nature of some of the specifications in draft Article 19, given we don't know what the monitoring system is going to be like, participants agreed that it was premature to see these detailed and useful prescriptions get lost. Concern was expressed that States would not agree with this level of detail, so something to think about it whether we could look at an appendix or regulations to the convention. Such things are easier to update in light of evolving technology, etc. On this same theme, a discussion of the value of including concepts of universal design was seen as fundamental. Some observed that the concept of universal design is getting a lot of attention, and not just in the west and the north, but also in the other countries.

There was also a reference to the Standard Rules as part of this discussion, and the fact that an appendix or the like might be an effective way to include them in the new treaty.

On this theme, it was noted that international environmental law has some treaties that are designed to have more technical protocols supplementary treaties, protocols agreed to based on the main treaties, and this precedent may be useful to keep in mind as well. Another source of precedent was thought to exist in the EU Convention on biomedicine, and it was noted that research into the international financial system might yield useful models as well.

Draft Articles 21 & 21 bis Health and Rehabilitation & Community- Based Rehabilitation

Introduction & Discussion Questions

The context for this draft Article is actually found in other international instruments, most notably, in article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Interestingly, in May of 2000 the ICESCR committee issued General Comment 14 to clarify the nature and the content both of the individual rights contained in the right to health, and of state obligations. The document recognizes that the right to health is closely related to other rights, like the right to food, the right to housing, the right who work, etc. It sets out four criteria by which to evaluate the implementation of the right to health, as follows:

  1. Availability - health care services need to be available in sufficient quantity;
  2. Accessibility - health facilities, goods, and services need to be accessible to everyone without discrimination;
  3. Acceptability - health facilities and services need to be culturally appropriate, need to be sensitive to gender, need to respect confidentiality, et cetera, and
  4. Quality - facilities, goods, services, must be of sufficient quality.

The measures in this draft article attempt to reflect these criteria. So, for example, when we say that health facilities, goods and services have to meet a certain standard of acceptability, then it follows logically that persons with disabilities should have the opportunity to participate in formulation of services. In that regard the last subparagraph 21 (m) provides that States Parties shall promote involvement of persons with disabilities and their organizations in a formulation of health legislation and policy as well as in the planning, delivery and evaluation of health services.

1) In this context, one question is whether you feel that is strong enough language, as currently drafted?

The second area worth noting here is that the Ad Hoc committee is considering a new article, 21 bis, the effect of which is to separate the right to health and the right to rehabilitation into two different articles. By way of background, the Standards Rules define rehabilitation as follows:

A process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, psychiatric and/or social functional levels, thus providing them with the tools to change their lives toward a higher level of independence.9

Thus, the rehabilitation process does not involve medical care, per se; but rather, it includes a wide range of measures and activities for more basic and general rehabilitation to goal-oriented activities, for instance, vocational rehabilitation.

So this sort of separate structure has received support from a number of government delegations, and it has been advocated for by NGOs where the idea is that this separation reflects the understanding that health care services and rehabilitation service are distinct and that they serve different needs.

2) The second key question for discussion then is whether you agree that there should be a separate article on the issue of rehabilitation?


  • Structure of Article 21

Participants felt that, as currently drafted the article confuses concepts. For example, there is no clear distinction between the right to health and access to medical care services. While access to health care without discrimination is an integral feature of the right to health, it is by no means all that is embodied in the concept. There is a wide range of other factors here which are often discussed under the rubric of "social determinants of health," and these are not effectively addressed in the current draft.

By "social determinants of health", people were referring broadly to issues related to population and reproductive health, as well as other social determinants like poverty, housing and literacy. There was a sense that these needed to be better emphasized in the text. This all needs to be very clear because one of the issues faced by persons with disabilities everywhere is the denial of health care services, both directly and because of these social determinants. Thus participants suggested a reframing of this article to make clear that this access is essential as an important part of the right to health.

Another concern related to the level of detail in some areas and at least two points at which this level of detail led to inappropriate drafting: 21 (d) on respite services, people felt it was unusual to say that health and rehabilitation services should include respite services. Respite is certainly an important issue in some cases, but placing it in the context of Health confuses the issue, and that consideration to deleting the entire sub- paragraph should be given. Similarly, 21 (g) on encouraging the development of sufficient numbers, of health and rehabilitation professionals seems unnecessary and perhaps inappropriate here.

  • 21 bis

The discussion about a separate article for Rehabilitation echoed for some participants the Canadian experience of 25 years ago; experience that led to, amongst other things, the founding of DPI. At the time, persons with disabilities saw rehabilitation as a very oppressive sort of separate universe, led by medical professionals who were intent on keeping us in our place. This extended into every aspect of life, as was reflected by a whole series of terms like 'vocational rehabilitation, recreational rehabilitation, and music therapy' etc. This was something that our community worked hard to overcome, and the struggle is not over in Canada, and very likely not in other parts of the world either. Therefore, many participants had real concerns about a separate article for rehabilitation.

There was an energetic discussion on this point, with no full consensus at the end. Some argued that the creation of a new and separate rehabilitation article might give it greater importance than we might want; while others suggested it was good to separate them to avoid the perception that rehabilitation was "the same" as health care.

No strong consensus was achieved on this point but what did receive strong support was the idea that no matter how the debate unfolds at the Ad Hoc Committee meeting, we must push for a clear definition of Rehabilitation. Such a definition must strongly underscore some key features, including for example the time limited nature of rehabilitation, in an effort to get away from the situation often experienced by people with disabilities that rehabilitation is this life-long process of fixing the individual to fit into society, rather than trying to remove barriers within society that prohibit the participation.

Even more important, many felt, will be to seek wording which acknowledges the concept that rehabilitation has, in many instances, actually deprived people of access to generic services and programs, and that this must be guarded against in the pursuit of the full enjoyment of human rights.

Draft Article 22 Right to Work

Introduction and Discussion Questions

By way of introduction, it was noted that the current formulation of the text has had very little discussion yet at the Ad Committee level, and that significant room for improvement and amendment can still be found. Still the basics of a useful article appear to be in place, though clearly in need of further elaboration at this stage.

Presently the text contains a chapeau which sets out an equality of access basis for the draft Article, which is followed by a series of sub paragraphs outlining various positive measures to address the issue of discrimination.

Concern was expressed that these measures are not clear enough, nor strongly worded enough.10 If one compares this text with the text found in the CEDAW it is clear that CEDAW is more strongly worded. For example, in this context CEDAW uses language like "ensure labour market access" rather than the language seen in sub paragraph (a) which calls for states to "promote a labour market and work environment that are open …." Against this background, participants were asked to consider two things as a place to begin discussions:

  1. The idea of discrimination is not presently addressed within this article and this may be problematic. What are your views?
  2. The issue of accommodation in the work place is not addressed in any substantive fashion and again this may be a problem. How would you suggest it be corrected?


  • Accommodation

This discussion speaks again to the need to have the concept of duty to accommodate and undue hardship clearly spelled. It was recognized that the terminology of undue hardship that we use in Canada might not be acceptable at the UN, but defiantly some terminology to express that concept needs to be found.

Others emphasized that despite the affirmative language in 22 (e) that States Parties need to ensure reasonable accommodation, the other side of that should also be clearly spelled out. That is to say, failure to "reasonably accommodate" an individual is not only a violation of the provision, but actually constitutes discrimination itself, and this needs to be made very clear.

This led to a discussion about how, in the future, people with disabilities are going to be turning to international law to argue for much more than just non-discrimination. We have to start framing the right to work as a substantive right which places obligations on governments to ensure that people with disabilities can work instead of leaving it up to the market. There has to be a broader obligation to ensure full participation in society, and in this is fundamental area, this Article could be perhaps the most central guarantee in the entire convention. It, therefore, needs to be strong and unambiguous.

Following on this idea, there was discussion on the appropriate parameters for the article, including the private sector. It was noted that 22 (h) only refers to the public sector and this needs to be expanded. Also consideration should be given here to conditions of recruitment which aren't covered either.

  • Conditions of work

There was then a lengthy discussion on the issue of sheltered workshops and how, if at all, this fits within this convention. Participants learned that CACL has taken the position that it does not fit in this convention, that the organization does not want a convention that is encouraging or promoting sheltered workshops. We want a convention that is looking for full inclusion in an open labour market.

From this, a discussion of the situation of people with disabilities in developing countries ensued, with several people supporting the inclusion of a sub-paragraph that focused not so much on sheltered workshops, but more on extreme conditions of slavery, and servitude, and the need to address these in some way in the article. One suggestion has been to draft specific language on this issue; compelling states parties to ensure that persons with disabilities are not subjected to slavery, servitude or compulsory labour.

It was noted here that CCD, along with many other organizations in Canada, has opposed the "work-fare" initiatives of the Ontario government and others around receipt of social assistance being dependent upon "voluntary" participation in the labour force. In this way, such a provision would be entirely consistent with CCD's approach in the past.

Draft Article 23 Social security & an Adequate Standard of Living

Introduction & Discussion Questions

This article, as currently drafted, combines rights in relation to social security with rights in relation to an adequate standard of living. This makes for a very broad area, especially when one considers the scope of "standard of living" will include not just income supports but access to housing and clean water, etc. Some discussion has taken place on dividing this and elaborating two separate articles, one on social security and another on standard of living, each of which is a complex area. The Key question for discussion here then is:

  1. Would this article be more effective and clear if it were separated into two?
  2. If so, how would you suggest that separation, be framed?


  • Too broadly drafted

Several people observed that there are so many different aspects of life that are all crammed into this one article that it failed to clearly articulate a vision of the right as it should apply to persons with disabilities. Several felt that this could be addressed by dividing things up into at least two separate articles. Moreover, it was noted that something as important as housing should be more fully elaborated.

With regard to this issue of housing, research after the meeting uncovered a submission to the Ad Hoc Committee by the Geneva Based NGO called the Centre on Housing Rights and Evictions (COHRE) which offered very detailed language for consideration, it is quoted below for ease of reference.11

Proposed amendments to draft article 23 (underlined in the text)

"State Parties recognise the right of all persons with disabilities to an adequate standard of living for themselves and their families, including adequate food, clothing, housing and access to clean water, and to the continuous improvement of living conditions. As such, State Parties will undertake to take appropriate steps to safeguard and promote the realisation of these rights.

  1. With regard to the right to adequate housing, State Parties undertake to engage in no act or practice of discrimination on the grounds of disability in relation to housing policies and programmes and to take all appropriate measures to ensure that all public authorities, public institutions and private entities shall act in conformity with this obligation. In that respect, State Parties shall give particular attention to those persons who face discrimination not only due to their physical or mental disability, but also due to their sex, gender, race, ethnicity and/or age.

  2. State Parties undertake to guarantee the full participation of disabled persons in the elaboration and implementation of housing policies and programmes and to ensure that the development and implementation of housing related legislation reflect their needs.

  3. State Parties shall take all appropriate measures to ensure that persons with disabilities can freely enjoy and exercise their right to housing and can participate fully and equally within society. Steps to be taken by the State Parties should ensure that housing for persons with disabilities:
    1. provides security of tenure and freedom from forced eviction.
    2. provides for the physical safety of occupants and protection from threats to health, structural hazards and disease vectors.
    3. is affordable and does not compromise the ability of persons with disabilities to secure other basic needs.
    4. contains all facilities essential for health, security, comfort and nutrition.
    5. is located in appropriate proximity to support services, employment options, health care services and other social facilities.
  4. tate Parties shall develop special programmes to ensure that persons with disabilities have access to affordable water, including for persons who require additional quantities of water for personal and domestic needs and for those with difficulties in physically accessing sanitation and water supply points and facilities.
  • Failure to address systemic poverty

It was noted that a right to a disability pension is, essentially, a ticket to poverty even in Canada. In this light, many participants argued that the text must push for something better. Many felt that the standard should be set higher, and there was a concern that as currently drafted the text seems "minimalist." As currently formulated the text suggests that people with disabilities only have the right to basic subsistence level of food, housing and clothing and this it was pointed out would be at odds with some of the other objectives in terms of dignity and social inclusion, thus creating internal inconsistencies and potential for confusing when the time comes to interpret the text in a monitoring arena.

Thus, many participants felt the need to address issues related to systemic poverty and its cyclical nature, insofar as disability results in poverty and poverty results in greater disability. This cyclical relationship of the two must be acknowledged for the Convention to address the reality of disability fully and effectively.

In this same context, there was a discussion about the issue of thresholds for social security benefits programs and the fact that to some degree this would support a call elsewhere for elaborating a definition of disability. Discussion here focused particularly on the issue of hidden disability and the strong potential for exclusion from programming in a case where a specific impairment was not visible. This discussion may be useful for reference in subsequent debate on draft article three which concerns definitions.

Draft Article 24 Cultural Life, Recreation, Leisure and Sport

Introduction and Discussion Questions:

Draft Article 24 is another one of these very lengthy and prescriptive articles with a lot of concepts in one article. Unfortunately, the concepts are not well defined; particularly with reference to culture. It was felt that concepts related to recreation and sports were more straight-forward and did not need detailed definitions. As it is currently formulated here, culture appears to mean national, racial, or ethnic culture, and this may be too limited an understanding particularly when one begins to consider disability culture, Deaf culture, or the like. The article attempts to guarantee access for a person with disability to culture, within the narrow understanding described above. It may also be that some of these provisions such as physical access are more effectively dealt with in other areas of the treaty that deal specifically with access in its broader form.

Another interesting feature of the draft Article is the reference to alternate format, which again may be better dealt with in other provisions. Having said this, no matter the placement, the current draft calls on states to take appropriate measures to harmonize their intellectual property laws so that literature and books can be printed in alternative formats.

It was suggested that a potential problem could emerge here with regard to trade agreements, which do cover copyright issues already. Caution should be taken to avoid creating conflicts with these established norms, which could lead to difficulties in the signing and ratification process.

There were no set discussion questions with this article, rather participants were asked for general impressions and reflections:


  • Culture

The discussion began with a review of CCD's prior commentary on this article and the reference to disability culture and deaf culture, etc. It was felt that the article should address this, and ensure recognition and appropriate protections. 12

This led to a discussion on the sub-paragraphs concerning access to cultural sites, and the view that such references would be better placed in a provision on accessibility was generally supported. Along the same lines, some concern was noted for the detailed and prescriptive definitions around theatre and films and the like. This was placed in the context that culture is evolving and cultural tools change and language changes and it may not be a theatre in 20 years, it may be something else. So concern was expressed that such a detailed list could soon render the article out of date.

On a very different note, one participant observed that no reference to minorities and protection of cultural heritage is to be found in the draft text. Perhaps, the person suggested, this is because these sorts of issues are addressed by the ICCPR, rather than the ICESCR. Nonetheless, the point was made that somewhere in the treaty this issue needed to be addressed.

  • Sport and Recreation

It was noted that the contribution by the European Disability Forum with respect to sport wanted to see the convention take a twin track approach addressing mainstream sport and sport activities for people with disabilities. Participants generally felt that this was a good approach.

This led to a suggestion that attention be given to the related issue of access to recreational venues. The draft article currently provides for access to services for recreation, but does not address the issue of access to recreational activities, and several participants agreed on the need for an expansion of this concept.

Draft Article 24 bis International Cooperation

Introduction and Discussion Questions

Reference to International Cooperation in other Human Rights Treaties has traditionally been a very simple statement about the importance of states implementing their obligations, with no real framework of exactly how this is to be done. In the past, some developing countries have tried to argue that there is a legal obligation to provide help and assistance, that the developing country has no obligation to give effect to human rights in the absence of Aid. At the same time, donor countries assert that a state holds the obligations to respect and promote human rights to its own citizens, and that is not contingent on anything, particularly not on the receipt of Aid.

In the past then, in order to bridge this significant divide, negotiators have kept references to International Cooperation to a recognition of the fact that states assist other states through aid and so forth, but the explicit link between giving effect to the obligations and the provision of aid has not previously been made, and will not likely get support in the current negotiations.

Having said this, the text seen in draft Article 24 bis, which was prepared by Mexico, is very prescriptive, and is set at a level of detail which does account for the fundamental orientation of donor countries; which is that, first and foremost, a state's obligation should never be contingent on the receipt of aid. Also, it should be kept in mind that prescriptive language around international cooperation provokes this sensitivity because many believe that International Human Rights Treaties are not the place to discuss aid policy.

The Canadian position has been an openness to a reference to the international cooperation, but - for the reasons outlined above - that it be kept to a minimum. With that overview, the following question was put to the group as a point of departure for the discussion:

  1. How we can influence the Canadian delegation and build on some of the positive things that the Government of Canada has done in the area of international cooperation and disability?


It was noted that one of the strategies that international disability organizations have been using here is to try to take it out of the discussion about bilateral aid and official development assistance per se, and instead, are talking about other areas of cooperation, technical cooperation between governments, exchanges of information and things, which in Canada we have been supporting through things like a 20-year commitment to DPI.

Others felt that at a minimum there should be a call for the use if a disability lens to ensure that, at a minimum, no new barriers are created, or - to put it another way - that no harm is done. The oft cited example of post-disaster reconstruction efforts, which very often spend millions of dollars to recreate inaccessible environments, was much discussed. Specifically, people were keen to see how the Convention could be used to refocus these sorts of efforts, and avoid causing harm. This led to an interesting debate, where some said that if a state was party to the convention they would be obliged in such a situation to ensure that principles of Universal Design were used, where there was an article on International Cooperation or not, for they would be committed to access through other provisions of the convention.13

At this point, a reference to the most recent of compromise language, as seen in the CRC was made. It states:

States Parties shall undertake all appropriate legislative, administrative and other measures for the implementation of the rights recognized in the present convention. With regard to economic, social and cultural rights, States Parties shall undertake such measures to the maximum extent of their available resources and, where needed, within the framework of international cooperation.

From this reference, discussion turned to the possibility of adding International Cooperation as a new sub-paragraph in Article 4 on General Obligations. Given that donor countries are unlikely to agree to a provision committing them to assist countries of the south who can't really afford to comply fully with this treaty, as was outlined above, perhaps a useful compromise would be to suggest this addition to draft Article 4 with the idea that perhaps in areas where it doesn't cost much (like reconstruction), states could be convinced to at least commit to the idea that their Aid doesn't make it worse.

Along with this, the new language could commit states factoring in disability to trade or investment treaties, so maybe that costs a corporation something down the line, but at the moment perhaps it doesn't cost the government that much so they might end up agreeing to that just to show that they want to respect the principle.

In sum, most participants felt that there should be an article on international cooperation and expressed hope that the Ad Hoc Committee would find creative means such as the suggestion of expanding draft Article 4 to overcome some of the challenges associated with the drafting process.

Draft Article 25 Monitoring


At the last meeting of the Ad Hoc Committee, there was a very interesting panel discussion on the issue of monitoring. The panel was organized by the Office of the High Commissioner on Human Rights.14 People with a good deal of experience in monitoring from a whole variety of perspectives including member states, CEDAW, and others who have been involved with the monitoring of Human Rights treaties for a number of years spoke about the fact that monitoring is essential in the life of the convention.

There is ongoing debate about how that monitoring should unfold. And, while it is "early days" in this process, we as a community need to develop some very strong understanding of what we think are our bottom lines around monitoring, what we believe is necessary in order for the convention to be effective and what we believe is necessary in terms of monitoring to carry our rights forward and give them realization. With that in mind, participants were asked to comment on their "bottom lines" for effective monitoring.


There was a consensus around the fact that even without necessarily having dealt with all the details, it seems clear that we will not support this convention if it doesn't have a strong monitoring mechanism. To be sure, the way that mechanism looks will involve many issues, but the initial 'bottom line' is that the Convention must have a monitoring mechanism, and it must be an effective one.

It was also suggested that it's important that CCD and other groups move quickly to put this front and centre on the agenda and to combat any notion that this is a secondary issue. It is in fact at the centre of everything that we're talking about and persons with disabilities need to be very clear about this. The phrase "rights without remedies are no rights at all" was used repeatedly.

There was a suggestion to modify the language a little bit from "monitoring" to "participatory mechanisms and effective remedies." It needs to be clear that the mechanism has to reflect consumer views, and that it has to hear from people with disabilities. You can't understand what the needs are to be accommodated if you don't hear from people with disabilities. Moreover, many felt that a participatory mechanism for both complaints and for review was essential in order to ensure effective monitoring.

To some degree it was felt that it is a matter of working with what we have, which is the complete opposite of what we seem to be hearing from some member states, which is, 'what we have is so bankrupt that we do not want anything at all.'

This approach, it was agreed, will not lead to effective monitoring. There was also discussion about things that governments could do to make the system work more effectively. For example, you do not need to have 300-page reports that overburden them and the committees. They could have focus reports. They could make sure we have annual hearings, domestically, that give rights holders a chance to identify what the problems are and give governments a chance to respond and to look at the concluding observations from the committee.

It was also noted that the concluding observations of various committees over the last ten years are useful documents. They have identified the key issues, and if we took them seriously and ensured there was adequate response to those concerns, we would be way ahead of where we are in terms of human rights compliance in Canada.

In this context the feeling amongst participants was that it's not so much that the system isn't working, it's that we are not making it work effectively at the domestic level and to utilize the international system as a way of getting these issues on the table and addressed in a more transparent and accountable governance.

For this reason the idea that a new treaty monitoring body should insist on a participatory mechanism with periodic review, and we should be insisting that there has to be a complaint mechanism, an optional protocol establishing a complaint mechanism that can be ratified at the same time that the convention is ratified, as it was with the international covenant on civil and political rights, where the complaint mechanism was able to be ratified when countries signed on to the covenant.

The argument should be that it's critical that this be framed around participatory rights. That's what human rights are all about. It's not just a right is illusory if there is no remedy. It will also be meaningless for people with disabilities if there is no voice attached to the right.

There was also discussion around an optional protocol that affords individual remedy and, by virtue of the process of having a committee that adjudicates on an individual complaint, develops a set of jurisprudence that gives normative content to the broad statements of rights that we would have in front of us in the treaty.

Others observed that because this issue of monitoring is a structural/procedural issue, as opposed to a substantive rights issue, it gives us the opportunity to think about it creatively, and what else we could do to improve upon the existing structures. For example, an emphasis on the idea of domestic participatory remedies can be very helpful. This is discussed in the OHCHR paper cited in footnote 14

Finally, with reference to the suggestion of an annual parliamentary review on compliance with the Convention, as one aspect of monitoring, people were reminded that in South Africa, under the constitution there is an annual review of compliance with the economic and social rights provisions of their constitution. In the same way, perhaps upon signing and ratifying a new disability treaty, a state party could designate one or two national institutions that will conduct the reviews and report the results of their reviews to the international body, and that's a report that's in addition to whatever periodical report governments might come up with. That would require, in other words, an annual review in the media in the nation and the international body being made aware of the review.

Appendix 1

March 21, 2005
For Immediate Release
Toronto - ON

Supreme Court of Canada Rules that Courts have Responsibility to Protect the Best Interest of Vulnerable Adults

On March 18, 2005, the Supreme Court of Canada issued a ruling in the case of JJ v Nova Scotia. People First of Canada (PFC) and the Canadian Association for Community Living (CACL) intervened in the case and ARCH - A Legal Resource Centre for Persons with Disabilities, acted as legal counsel. PFC and CACL believe the ruling is favourable for persons with disabilities across the country.

The case focuses on JJ, a woman with intellectual disabilities and mental illness. JJ had resided in the Nova Scotia Hospital and wanted to move to the community and access needed supports. Her husband, parents, and staff at the Hospital supported her wishes. Because she was under the Adult Protection Act of Nova Scotia, the Minister of Health had the power to determine her living and support arrangements, as long as the plan was in her 'best interest'. However, the Minister of Health approved a plan for her to move to a Regional Rehabilitation centre 125 kilometres from her family and friends and where she had lived all her life.

The Family Court of Nova Scotia ruled that the Minister's plan to place JJ in a centre so far from her community and family was not in her best interest. The Minister argued that the court exceeded its jurisdiction by imposing terms and conditions on a care plan. At issue in the case was the extent of a court's jurisdiction to determine whether the Minister's plan is in fact in the individual's best interest.

In a unanimous decision, written by Justice Abella, the Supreme Court has ruled that, having approved the loss of autonomy under the Adult Protection Act, the courts not only have the jurisdiction but the responsibility to ensure that a care plan is in fact in the best interests of the individual. The court stated: " The significance of independent judicial review of state action when a vulnerable adult has been deprived, at the instigation of the state, of the right to function autonomously, cannot be overstated."

Heather Tracey, President of People First of Canada who resides in Nova Scotia, stated: "this is a real victory for people who have been labelled with a disability. This is a step in the right direction for ensuring, across the country, that people with disabilities live in the community close to family and friends and not in institutions".

Zuhy Sayeed, President of CACL expressed: "While the decision did not directly address an individual's right to live in the community, it has reaffirmed that a province cannot act unilaterally in making decisions about individuals under its care. We believe there is a lot to build on in this ruling, particularly in our deinstitutionalization efforts and to secure community supports for persons with disabilities."

Appendix 2

New Zealand 's Proposed Wording for Article 15 January 2005

1. States Parties reaffirm the right of persons with disabilities to liberty of movement and freedom to choose his or her residence. States Parties shall ensure persons with disabilities determine how, where, and with whom they live on an equal basis with others.

(Derived from Article 12 (1) ICCPR)

2. States Parties to this Convention shall take effective and appropriate measures to enable persons with disabilities to live in, independently and to be fully included in the community. States Parties shall take measures to including by ensure that:

(Derived from chapeau of Article 15 of the working group text)

  1. community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs;
  2. (Derived from Article 15 1(d) of the working group text)
  3. persons with disabilities have equal access to governmental housing programs; and
  4. (Derived from Article 23.1 (d) of the working group text)
  5. persons with disabilities have access to information about available community services, including support services.

(Derived from Article 15 1(e) of the working group text)

3. States Parties shall also take appropriate measures to promote the provision of in-home, residential and other community support services, including personal assistance, enable persons with disabilities to live and participate living and inclusion in the community on an equal basis with others with choices equal to others, and to prevent isolation or segregation from the community. States parties shall ensure that these support services are provided in a manner that recognises the autonomy, individuality and dignity of persons with disabilities and, in particular, that access to personal support is consistent with the right to liberty of movement and freedom to choose a residence.

(Derived from Article 15 1(c) of the working group text)

4. States Parties to this convention shall take effective measures to ensure liberty of movement mobility with the greatest possible independence for persons with disabilities, including facilitating access by persons with disabilities to high-quality mobility aids, devices, assistive technologies and forms of live assistance and intermediaries. including by making them available at affordable cost.

(Derived from Article 20, the chapeau and (a)) of the working group text)

5. States Parties shall take all appropriate and effective measures to ensure the equal right of persons with disabilities have opportunities for economic development and financial independence, including to rent, own or inherit property, to control their own financial affairs, and to have equal access to bank loans, mortgages and other forms of financial credit on an equal basis with others.

(Derived from Article 9 (e) of the working group text)

Appendix 3

Participant List

Disability Community

  1. April D'Aubin Council of Canadians with Disabilities, Staff

  2. Laurie Beachell Council of Canadians with Disabilities, Staff

  3. Jim Derksen Council of Canadians with Disabilities, International Committee

  4. Mary Ennis Council of Canadians with Disabilities, International Committee

  5. Steve Estey Council of Canadians with Disabilities, International Committee

  6. Jason Mitschele Council of Canadians with Disabilities, International Committee

  7. David Shannon Council of Canadians with Disabilities, International Committee

  8. Stephanie Marinich Council of Canadians with Disabilities, Human Rights Committee

  9. John Rae National Federation of the Blind - Advocates for Equality

  10. Anna MacQuarrie Canadian Association for Community Living

  11. Rachaael Ross National Educational Association of Disabled Students

  12. Rick Goodfellow Canadian Association of Independent Living Centers

  13. Sara Jarvis Canadian Association of Independent Living Centers

  14. Moira Jones Disabled Peoples International

  15. Zephania Matanga African Canadian Association of Disabled Persons


  16. Marcia Rioux Disability Rights Promotion International, York University

  17. Rita Samson Disability Rights Promotion International, York University

  18. Allan McChesney International Commission of Jurists, Queens University

  19. Aaron Dhir University of Windsor Law School


  20. Vangelis Nikias Social Development Canada

  21. Dennis Steubing Social Development Canada

  22. Rebecca Netley Department of Foreign Affairs

  23. Alan Kessel Department of Foreign Affairs

  24. Marthe St-Louis Department of Foreign Affairs

  25. Kathryn Hamilton Canadian Human Rights Commission

1 There is currently a major reform movement taking place in the UN system, which may well impact on the way treaty bodies - especially the Commission on Human Rights - conduct their work.

2 See Appendix 1 for Press Release on this decision

3 See Appendix 2 for a copy of this proposed text

4 The case dealt with a situation where a person had a disability requiring support services in a home, and these had been provided by a live-in partner. But after their separation, Mr. Fernandez requested assistance to cover the cost of necessary in-house support services, arguing that the right of security of a person required the special assistance so he would not have to live full time in the hospital to get the assistance. The court of appeal in Manitoba found that this is not a judiciable right, i.e. essentially one does not have a right to living in a house but rather only the right to necessary health care under Section 7 of the Charter, which was available in an institutional setting.

5 CCD has done some commentary on the issues of over-protectiveness and on the issues of adults who are still viewed as children by family and decisions made on their behalf. We also have had a number of instances in Canada where parents have ended the lives of their child with a disability and, in some cases, then ended their own life, and CCD has done a good deal of work in this area. It was suggested that this could be used as a basis for a further discussion paper - similar to that proposed on article 15 bis. This paper could explore, among other things, issues of with children with disabilities and the values around autonomy or inherent rights that may accrue to other children who are in a worse position

6 G. Quinn and T. Degener, Human Rights and Disability: The Current Use and Future Potential of United Nations Human Rights Instruments in the Context of Disability ( Geneva: Office of the High Commission for Human Rights, 2002). Available on-line at

7 One participant noted that a survey was done by Bengt Lindquist when he was still Special Rapporteur on international voting standards for people with disabilities, and this might be a useful document to access in advance of the next Ad Hoc Committee meeting. Available on-line at

8 The group has recently made this paper available to the Ad Hoc Committee for consideration it may be found on the Web at

9 UN GA res. 48/96, Annex (48th session, December 1993) Page 8 [hereinafter Standard Rules].

10 In this context, the point was made that the issue of weak language and phrasing is generally apparent throughout the draft Convention; and there was strong consensus that this needed to be addressed carefully as the drafting process continues.

11 The full text of the submission is on the Ad Hoc Committee's Website and can be found on-line at:

12 It was suggested that CCD consult with Cathryn Frazee who has been working in this area and has quite an interesting re-conceptualization of disability and culture.

13 In this discussion it was also noted that a number of international aid agencies have come together in something called the "Sphere Project". The idea is to include human rights principles in any humanitarian aid relief. So, it was suggested that maybe this new convention could be used in that forum to advance inclusion as a part of the sort of quality control principles and human rights principles for the administration of aid that the Sphere Project advocates.

14 The Office of the High Commissioner for Human Rights produced a paper on the topic which can be found online at :