How the UN Convention on the Rights of Persons with Disabilities (CRPD) Might Be Used in Canadian Litigation

Report Prepared for CCD by Joëlle Pastora Sala
Law Student, Faculty of Law University of Ottawa

Introduction

This timely memorandum examines the intersection between the United Nations Convention on the Rights of Persons with Disabilities[1] ("CRPD") and Canadian litigation. The timely nature of this memorandum refers to the fast approaching second year anniversary of the Canadian ratification of the CRPD. Organizations such as the Council of Canadians with Disabilities ("CCD") and concerned individuals across Canada are now wondering what they can do to make the CRPD real and meaningful.

This memorandum aims to provide some guidelines to understand how the CRPD can be used in Canadian litigation to promote the human rights of persons with disabilities. You have asked me to conduct research and provide answers to the following questions:

1. How can international conventions be used in Canadian litigation?
2. How have other international conventions been used in Canadian litigation?
3. How can the CRPD be used in litigation to promote the rights of persons with disabilities in Canada?

Analysis

Background

Although an in-depth explanation of the CRPD's background is beyond the scope of this memorandum, it is important to provide a brief synopsis of this information to better understand how we can move forward, particularly with regards to Canadian litigation.

The description of human rights as "invisible rights" seems accurate when examining the rights of persons with disabilities[2]. Previously, persons with disabilities were legally and politically 'disappeared' or 'invisible' in most countries of the world[3]. This "invisibility" is precisely what the CRPD seeks to address by making visible the rights of persons with disabilities[4]. Despite the fact that there is globally more than 650 million people with disabilities, the international community has been slow to acknowledge the human rights of persons with disabilities[5]. When the opportunity finally arose, hundreds of networks of organizations and individuals of the disability community came together to negotiate the final wording of the CRPD.

The CRPD is therefore a reflection of compromises by many actors[6]. This Convention was formally adopted by the United Nations ("UN") General Assembly on December 13, 2006. By March 2007, the Convention opened for signature and ratification and it came into force in 2008. It consists of 50 articles which seek to promote and protect the human rights of persons with disabilities. These protections include a number of areas such as access to justice, education, work and employment, respect of privacy, and health. It is said to be a hybrid convention which combines civil, political, economic, social, and cultural rights[7]. The Convention is unique in many ways as it was the first human rights treaty of the 21st century, the fastest negotiated human rights Convention in UN history, the first time civil society was so actively involved in the creation and negotiation of the text, and almost the first time Canada signed a UN Convention on its opening day[8]. The creation of the Convention brought together a variety of militant disability and equality rights seekers and put into practice the motto "nothing about us without us"[9]. In other words, "the most excluded group of people in society became the most included in the history of the United Nations"[10].

The Canadian government announced its ratification of the CRPD on March 11, 2010. According to the CCD, Canada was one of the most progressive and engaged delegations involved in the negotiations of the CRPD[11]. Despite this, the Canadian government has no intention of ratifying the Optional Protocol to the CRPD which establishes an individual complaints process regarding the perceived state violations of the Convention[12]. The disability community worries this could be interpreted to signal a less than full commitment by the Canadian government to advancing policy reforms[13]. That being said, Canada is now bound under international law to comply with the rights of the Convention but the way in which these obligations will be interpreted in Canadian courts has yet to be fully understood. Failure of the Canadian government to domestically implement the Convention seems to put pressure on individuals to pursue cases before the courts and force change and compliance.

1. How can international conventions be used in Canadian litigation?

The Canadian Constitution[14] contains no provision regarding the application of international treaties to domestic law. As such, there are different schools of thought concerning the precise legal procedures for the implementation of conventions. There are three main classifications of conventions in Canadian courts: 1) unincorporated conventions 2) conventions that have been incorporated by implication 3) customary international law. When conventions are unincorporated, discretion is left to the courts for their interpretation at the domestic level.

Unincorporated conventions

Within a Canadian context, unincorporated conventions are those which have not been incorporated into domestic legislation. Traditionally, the formalistic approach tells us that unlike international custom, international conventions are not part of Canadian law unless they have been "incorporated" by domestic legislation[15]. The basis for this understanding by the courts is the well established principal of legislative supremacy which renders deference to Parliament by the courts. On this point, unincorporated conventions cannot be used to override domestic legislations, except by way of the Charter. In other words, "unincorporated" conventions are not directly binding in Canadian courts as they cannot be invoked as a direct source of rights and obligations[16]. In contrast, some have pointed out that explicit implementation legislation is only required when domestic legal authority does not already exist and that there are already existing mechanisms that could implement the Convention in Canada[17]. Others have said that simple incorporation of conventions into domestic law is not enough in itself as courts have been known to give a restricted interpretation of rights[18].

Conventions that have been incorporated by implication

Even when conventions are unincorporated into domestic legislation, they can sometimes be recognized as incorporated by implication into the Charter and/or relevant federal or provincial legislation. Indeed, Bayefsky suggests that the implementation of a treaty into legislation need not be expressed explicitly[19]. This is due to the common law presumption that courts ought to comply with Canada's international law obligations at the provincial and federal level[20]. Not to mention that contrary to the United States, recent caselaw in Canada seems to suggest courts allow more flexibility in using international law domestically[21]. Recently, the Supreme Court of Canada clearly stated in R v Hape that the ratification of an international convention reflects an important limit on state sovereignty[22] and that conventions may be applied in cases of ambiguity[23]. Though conventions are a type of soft law, their importance must be recognized because when countries are not in compliance they cannot respond by simply saying they are not bound by the convention[24]. Indeed, a state cannot invoke its domestic law at an international tribunal as justification for not living up to a treaty obligation[25].

Customary international law

If a convention is unincorporated, it could be recognized as part of customary international law which automatically becomes part of Canadian common law. Customary law is said to exist when a state acts a certain way on the "assumption they are legally bound to do so"[26]. Legislatures are presumed to comply with values and principles of customary and conventional international law as those values and principles form the context in which statutes are enacted[27]. It is noteworthy that this presumption is rebuttable, however Parliament is required to demonstrate its intent to default on its obligations[28] from the very beginning[29]. Parliament can do so by enacting legislation that clearly contradicts the international customary law in question[30].

Interpretation

If conventions are not recognized as part of Canadian common law by customary law or by implicit incorporation, it is most likely that courts will use conventions as interpretive tools for domestic law. The Canadian experience in recent years favors the use of international conventions and treaties as methods of judicial interpretation[31]. This is particularly the case when courts interpret the Canadian Charter[32]. The 1987 decision of the Supreme Court of Canada, Reference Re Public Service Employee Relations Act[33], must be a starting point for any discussion concerning the role of international law in relation to the Canadian Charter[34]. In this case, Judge Dickson held that the international obligations to which Canada is bound should provide an "important indicia" to the interpretation of the Charter[35]. More specifically, he notes that the Charter "should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified"[36]. Having said that, Judge Dickson noted that the judiciary is not bound by the norms of international law in interpreting the Charter[37].

The most significant development with regards to the interpretation of conventions and the Charter is the Supreme Court case of Baker v Canada (Ministry of Citizenship and Immigration)[38]. The issue to be determined in the Baker case was whether the order to deport a woman with Canadian-born dependent children should be judicially reviewed. Mrs Baker had asked for an exemption based on the humanitarian and compassionate considerations under section 114(2) of the Immigration Act. To interpret the scope of the legal norm expressed, namely "compassionate or humanitarian considerations", Judge L'Heureux-Dubé speaking on behalf of the majority centered her analysis on the 1989 Convention on the Rights of the Child[39]. Judge L'Heureux-Dubé made a groundbreaking statement when she said the following in the Baker case: "I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law. Nevertheless, the values reflected in international human rights law may help inform the contextual approach to statutory interpretation and judicial review"[40].

In other words, Judge L'Heureux-Dubé clearly states that the principle that conventions have no effect until they are incorporated into domestic law no longer applies. More recently, the Supreme Court of Canada opined in the 2005 case of Mugesera v Canada (Minister of Citizenship and Immigration) that "international law is thus called upon to play a crucial role as an aid in interpreting domestic law"[41]. As a result, conventions have a bigger impact when they are used to interpret the Charter. That is not to say that conventions have no impact on other domestic legislations as legislatures are presumed to respect the values and principles enshrined in international law therefore in so far as possible, an interpretation by the courts that reflect these values and principles is preferred.[42]

2. How have other international conventions been used in Canadian litigation?

Due to time constraints, I have decided to focus on the Convention on the Rights of the Child ("CRC") as it has gained the most support from members of the international community.[43]

The U.N. Convention on the Rights of the Child (CRC)

At first glance there is good reason to be suspicious of Canada's commitment to the CRC as it failed to incorporate it into domestic law[44]. Yet one must consider Canada's position before ratifying the CRC in order to better understand its commitment. Accordingly, the federal government's position stated that they consulted with all provincial governments and determined legislations were already in conformity with the Convention[45]. However when one considers for example the rights and the situation of certain Aboriginal children, it is "highly dubious" that the CRC has already been fully implemented into Canadian law[46]. On the contrary, to deem Canada's commitment to the CRC as symbolic would be inaccurate due to beneficial impacts of the Convention particularly in the area of the protection of the rights of the child[47].

But Canada's commitment to the CRC at the legislative and judicial level is wavering at best. On the one hand, the Supreme Court of Canada has stated that judges should use the CRC to interpret the law and that this ought not to be at odds with legislatures because they must presume they would want to uphold the values enshrined in the CRC[48]. Most of the cases that have mentioned the CRC invoke article 3 (1) of the CRC[49], stating the best interest of the child[50], however other articles of the CRC have also been taken into account for the interpretation of different legislations[51]. On the other hand, in 2007, Canadian governments had not referred to the CRC in most of its child-related legislations enacted since the ratification of the Convention, with the exception of the federal Youth Criminal Justice Act[52]. Furthermore, they have seldom referred to the CRC in decisions which invoke Canadian obligations originating from the CRC[53]. Consequently, courts have experienced difficulty interpreting Parliament's intent for the implementation of the CRC.

The inconsistent access to and use of international norms have proved to be problematic[54]. This wavering commitment may be attributed to the challenges of the Canadian federalist state, the shortage of financial resources, and the lack of political and public pressure for action[55]. Courts seem to have given the Convention a "hesitant embrace", therefore the CRC has been deemed to have "pervasive force" but not "obligatory force"[56]. Ultimately enforced on the basis of moral and political pressures as a state party will typically not want to be embarrassed or chastised for dishonoring its international commitment[57]. However according to my review of existing caselaw, the CRC has had a noteworthy impact on the rights of the child and it serves as an indicator for the way in which the CRPD may be interpreted in courts.

3. How can the CRPD be used in litigation to promote the rights of persons with disabilities in Canada?

In their ratification statement, the Canadian government stated that although the CRPD "would not form part of domestic law, [it] could have an interpretative influence"[58]. The Canadian government also noted it was important to promote the role of Canada as a world leader on the rights of persons with disabilities[59]. Moreover, that the obligations of the Convention could be complied with through the reliance of the Canadian Charter of Rights and Freedoms, the Human Rights Act, and equivalent provincial and territorial legislations[60]. Finally, it noted that "no changes to the federal legislation or policy were identified as required for ratification"[61]. In light of this statement, it is my understanding that Canadian courts have two main challenges with the implementation of the CRPD.

Challenges

As previously mentioned, the nature of Canada's dualistic approach to conventions requires that a convention be brought into domestic law through the implementation of a domestic legislation. Theoretically, treaties and conventions that are ratified are regarded by courts to have been implemented in Canadian law and can have an impact upon domestic law[62]. Because of the division of power in Canada, the federal government has exclusive power to enter into treaties and can only legislate to implement treaty obligations on subject-matters that fall within federal jurisdiction according to the Constitution Act of 1867[63].

With respect to the CRPD, Canada has not taken any measures to explicitly implement the convention into domestic law. As the ratification of the CRPD is so recent, I would argue that it is too soon to interpret the intention of the Canadian government. Certain legal scholars suggest that the current lack of legislation ought not to be interpreted by courts as meaning the convention is unimplemented[64]. These scholars insist certain articles of the CRPD, such as article 24, which recognizes the rights of persons with disabilities to education, have already been implemented implicitly through existing legislations[65]. For this reason, as part of the implementation of the CRPD, existing legislation should be reviewed in order to ensure its compliance with the rights set out in the Convention[66]. Furthermore, I would add that existing provincial and federal legislations should be scrutinized in order to establish whether there are similarities with the articles in the Convention. This could encourage courts to be more flexible towards the use and implementation of the CRPD.

On this note, a uniquely Canadian challenge is that of our provinces. Despite the fact that Canada worked so closely with the provinces and territories during the creation of the CRPD[67], the coordination of a unified approach for the implementation in Canadian litigation presents a challenge. One could point to the Common Law tradition that States usually wait to ratify a convention until there is reasonable ground for believing that domestic legislations and practices are in conformity to argue for Canada's positive intention towards the CRPD[68]. Nevertheless, drawing upon the Canadian courts' implementation of the CRC, I believe the CRPD will be used in its beginnings as an interpretive tool. Yet even used as an interpretive tool, the CRPD will probably have a significant impact on the rights of persons with disabilities.

Interpretive tool

The Supreme Court of Canada has opined that international law must play a crucial role in the interpretation of domestic law[69]. On this point, legal scholars have argued that conventions should not be used as an interpretive or persuasive power by courts, rather an "interpretive obligation"[70]. In her book, Yolles[71] argues there are four ways of using the CRC as interpretive tool in Canadian courts. I would argue these methods can also be used in the context of the CRPD. Firstly, the CRPD can help resolve ambiguity in statutory language. The CRPD concerns the human rights and dignity of persons with disabilities and the ultimate role of courts is to protect human rights. Therefore, courts ought to be less concerned with usurping legislative supremacy[72]. In other words, unless there is a clear conflict, courts should interpret the CRPD in a manner consistent with Canada's obligations under the Convention. Secondly, the CRPD can serve to guide the exercise of judicial discretion in order to fill in omissions of existing Canadian law as well as place Canadian law in a broader context.

Thirdly, the CRPD can be used an interpretive tool in the context of the Charter by giving content to rights and freedoms expressed. Judge Dickson in Slaight Communication said "I believe that the Charter should generally be presumed to provide protection at least as great as that afforded by similar provisions in international human rights documents which Canada has ratified"[73]. In other words, the CRPD can serve as an indication of permissible limits on rights and freedoms set out in the Charter.

Lastly, the CRPD should be used as a guide in the development of common law by resolving uncertainties, reflecting public policy, and indicating the content of customary international law which can then be drawn upon in both common law and civil law. Just as with the CRC, different articles of the CRPD will be used and interpreted differently with different occurrences. One of the articles of the CRPD which offers great potential for the advancement of the equality rights in Canadian litigation is article 24; the right of persons with disabilities to access education.

Right to Education

Education rights are fundamentally important for the disability community[74] as they promote full and equal participation in academic and social development. Historically, persons with disabilities have had a lack of access to education compared to persons without disabilities[75]. The CRPD marks the first time treaty language identifies disability as a grounds of discrimination within the context of access to education[76]. Article 24 of the CRPD provides explicit recognition of the right of persons with disabilities to education. That being said, one of the biggest debates concerning the right of persons with disabilities to education is the right to accommodation of persons with disabilities within the education system.

Segregated schools were historically accepted by many jurisdictions as the appropriate setting for students with disabilities[77] and their focus was not on providing academic skills but on "correcting perceived deficits"[78]. Research shows that special education is based on the premise that disability is pathological and needs to be fixed through scientific treatment[79]. Furthermore, the presumption of segregated education "reinforces the hierarchy of difference that treats the disabled as second class"[80]. It has also been found that inclusive education has a positive impact on children and builds safe and supportive communities[81]. Despite this evidence, more than 40% of students with intellectual disabilities remain in segregated educational environments[82]. On this note, I would argue that past decisions which have determined that segregated education do not constitute a violation of equality rights are wrong when regarded through the prism of article 24 of the CRPD. Three of these existing decisions are: Eaton[83], Moore[84] and Autun[85].

i. Eaton

The Eaton decision concerns 12-year old Emily Eaton who had multiple disabilities including cerebral palsy and a visual impairment. Emily had attended a neighbourhood school in an integrated setting for three years. When teachers decided to place Emily Eaton in a special education classroom, her parents objected and challenged the school's decision upto the Supreme Court level. At the Supreme Court, Judge Sopinka speaking on behalf of the majority held that the school board's decision did not violate section 15 of the Charter. On the one hand, the analysis in this decision made it clear that under the Charter, the Canadian government has a duty to accommodate the needs of persons with disabilities. On the other hand, it is troubling that the court made a presumption that integrated educational settings work to disadvantage students for whom they consider special education required for them to flourish. Pothier states that Judge Sopinka completes his analysis with a strong "for your own good rationale" from a "able-bodied" perspective which ignores the rights of persons with disabilities[86].

ii. Moore

This decision of the British Colombia ("BC") Supreme Court concerns Jeffrey Moore, a child with dyslexia who was discriminated against because he was not provided with sufficient supports from the School District and nor the Ministry of Education early enough for him to prosper as a student. The initial Tribunal decision found that earlier screening for children with learning disabilities and specific services and training result in dramatically greater academic success and that students with learning disabilities were systematically discriminated against. The Tribunal also held that Moore was discriminated against as there were funding cuts which resulted in the closure of a specialized program known as "DC1". However the BC Supreme Court concluded that the Tribunal erred because it mischaracterized the "service customarily available to the public"[87]. The court stressed the importance of a strict comparator group analysis between the plaintiff and similarly situated students who require special education services. This decision held two problematic conclusions. Firstly, the majority found that the service customarily available to the public was special education. Secondly, the majority stressed that students such as Moore are not entitled to a "standard of perfection" of services rather, reasonable steps to have their needs met[88].

iii. Auton

The Auton decision concerns the access to health services of an autistic child within the general context of education rights. The parents of a child with autism said the failure to fund the Applied Behavioural Analysis or Intensive Behavioural Intervention ("ABA-IBI") treatment violated the equality guarantee in section 15 of the Charter. The cost of this treatment was considerable; between 45 000$ and 60 000$ per year. The Supreme Court of Canada reversed the lower courts decision that the ABA-IBA therapy was medically necessary for children with autism and that failure to fund this therapy violated the plaintiff's equality rights. The Supreme Court of Canada held that the Canadian Health Act only required that core health services be provided to Canadians. The court also concluded that the appropriate comparator group was non-disabled persons or persons with a disability other than a mental disability, seeking funding for an emerging non-core therapy only recently recognized as medically required.

Putting the CRPD into practice

As previously mentioned, I would argue that all three cases discussed above are wrong when revisiting them in light of Article 24 of the CRPD. The presumption of an inclusive education system is precisely the opposite of the Supreme Court of Canada ruling in Eaton. According to this decision, the presumption is for segregated education and individual merits of each case must be analyzed to determine the outcome of the situation. Although Article 24 does leave space for segregated education particularly for the deaf community[89], when considering Article 24(2) in its entirety, it clearly requires states to favour inclusive education for persons with disabilities. More specifically, it says clearly that "State Parties shall ensure an inclusive education system at all levels"[90]. When revisiting the Moore decision, one could argue that Article 24 of the CRPD could assist as an interpretive tool when determining the proper comparator group. The more formalistic approach to determining the appropriate comparator group is inconsistent with the values contained in Article 24 of the CRPD[91]. If we revisit the Auton decision, the principles of Article 24 and 25 of the CRPD could be invoked to say that "persons with disabilities have the right to the enjoyment of the highest standard of health without discrimination on the basis of disability"[92]. Furthermore, Article 24 clearly indicates that State parties shall promote the full development of human potential of persons with disabilities by providing appropriate supports and programs.

When considering these three cases the way in which the CRPD can be used to promote the rights of persons with disabilities seems much clearer. As a way of reinforcing the compliance of the CRPD in Canadian courts, advocates should look to existing legislation as a safe guard in case domestic implementation of convention is not recognized[93]. By referencing specific provisions in domestic statutes that recognize the right to education of persons with disabilities, the binding nature of the CRPD is strengthened[94]. It must be noted that as education falls under the provincial competences, provincial governments could choose not to adopt new legislations[95]. There does not appear to be any new legislations implemented domestically concerning the rights of persons with disabilities in the context of education since the ratification of the CRPD[96]. Nonetheless, one must remember this ratification is still very recent and legislatures are presumed to comply with values and principles of customary and conventional international law. For this reason, courts may find existing legislation to be sufficient to implement the CRPD domestically[97]. Some legal scholars have already argued that in future litigation concerning the integration of students with disabilities, advocates for either plaintiffs or intervenors could make a persuasive argument that Article 24 of the CRPD which has been ratified by the Canadian government mandates a policy of inclusion[98].

That being said, it important to note that tribunals and courts have already incorporated the CRPD in their decisions. In the recent 2010 decision of the federal court, Leobrera v Canada (Minister of Citizenship and Immigration)[99], a 23 year old woman with intellectual disabilities applied for the judicial review of an immigration officer's decision refusing to grant the applicant's humanitarian and compassionate application under section 24(1) of the Immigration and Refugee Protection Act. The applicant argued that the officer erred by confining her analysis of the best interest of the child as she should have been considered a "child" due to her disability in spite of her age. This is a noteworthy case as Judge Shore invoked both the CRC and the CRPD to dismantle negative stereotypes and argued that "dependent adults" should not be considered as "children".

Furthermore, the Ontario Superior Court of Justice considered the CRPD in another recent decision, Cole v Cole (Litigation guardian of)[100]. In this decision, the applicant takes the position that a person "should not be considered incompetent to make decisions merely because of their disability"[101]. The CRPD was also applied in two decisions of the Ontario Human Rights Tribunal. The Yuil v Canadian Union of Public Employees[102] decision concerned the appointment of a litigation guardian for a person with disabilities. The right to access to justice (set out in article 13 of the CRPD) was invoked[103] as well as the general values of the Convention which is said to "suggest an interpretation of this legislation that facilitates access to the Tribunal process for persons with disabilities while also providing appropriate safeguards to prevent abuse"[104]. In the other decision of the Ontario Human Rights Tribunal, Hinze v Great Blue Heron Casino,[105] the applicant allegedly experienced discrimination on the basis of a disability when his employment was terminated by the respondent. The preamble of the CRPD is invoked in order to define "disability" and particularly the shift from the "bio-medical model" of disability to the social concept which recognizes persons with disabilities as deserving of human rights protections[106].

In addition, on May 17th 2011, the CCD invoked the CRPD for the first time in the D.A.I. case which considers whether persons with disabilities should be allowed to testify in courts. The CRPD obliges Canada to facilitate the direct participation of persons with disabilities in all legal proceedings[107]. The results of this case are awaited with great anticipation particularly as Canada led the discussions on Article 12 of the CRPD which gives the right to persons with disabilities equal recognition before the law[108] and it will therefore be interesting to see how the Canadian courts interpret this article.

Conclusion

Some have said that the CRPD (or parts of it) may be interpreted in courts as part of common law[109] which would make its implementation obligatory before the courts. On this point, my research found that courts will favor using the CRPD as an interpretive tool. That said, even if the CRPD were to be interpreted as part of common law, it is still up to discretion of judges to make the final decision on how the convention will be interpreted. My observations of the CRC indicate that although international conventions are often applied as interpretive tools, they still have the ability to create positive change. In addition, the previous use of international conventions in cases at the Supreme Court of Canada have set an important precedent for unratified conventions such as the CRPD. As Pothier has said, the "challenge ahead will be to convince the courts to act despite the common deference to Parliament"[110]. Nevertheless, there is something to be said for the willingness of different levels of Canadian courts to invoke the CRPD within less than two years of its ratification.

In addition to providing an interpretive tool to courts, the CRPD can also be used to review programs and policies in order to determine whether or not we are living up to the "promise of our human rights laws"[111]. This is another essential role of the CRPD as we must look to our domestic and legal frameworks to ensure legal compliance which are reflected in our practices, programs and services[112]. Developments at the national level will occur but in the meantime, provincial level actors should be considered as these arguably have the greatest potential to impact the daily lives of persons with disabilities[113]. An example of a grassroots program at the provincial level is Steve Estey's idea of starting a grassroots community session in Nova Scotia on article 29 of the CRPD which concerns political participation of persons with disabilities[114]. I would argue that other grassroots community involvement initiatives as such are necessary to make the CRPD real and meaning for real people. In conclusion, Canada's involvement in the creation and negotiation of the CRPD is an impetus for increased usage of the CRPD in Canadian litigation, and legal scholars and practitioners should continue invoking the CRPD to ensure equality for persons with disabilities. This is particularly the case in light of Canada's ratification statement which indicates its desire to become a world leader in disability rights.

• [1] Convention on the Rights of Persons with Disabilities, 13 December 2006, A/RES/61/106 [CRPD].
• [2] Ida Elisabeth Koch, "From Invisibility to Indivisibility: The International Convention on the Rights of Persons with Disabilities" in Oddny Mjöll Arnardottir & Gerard Quinn, eds, The UN Convention on the Rights of Persons with Disabilities (Martinus Nijhoff Publ., 2009) at 67 [Koch].
• [3] Gerard Quinn, "Bringing the UN Convention on the Rights for persons with disabilities to life in Ireland" (2009) 37 British Journal of Learning and Disabilities 245 at 246 [Quinn].
• [4] Koch, supra note 2.
• [5] Ravi Malhotra & Robin F Hansen, "The United Nations Convention on he Rights of Persons with Disabilities and its Implications for the Equality Rights of Canadians with Disabilities : The Case of Education" (2011) 29 Windsor YB Access Just 73 at 76 [Malhotra].
• [6] ibid at 79.
• [7] ibid.
• [8] "UN Convention on the Rights of Persons with Disabilities: Making Domestic Implementation Real and Meaningful" (February 2011), online: Council of Canadians with Disabilities [http://www.ccdonline.ca/en/international/un/canada/making-domestic-implementation-real-and-meaningful-feb2011] [CCD].
• [9] Anna MacQuarrie, "The UN Convention on the Rights of Persons with Disabilities: A New Ear of Disability Rights" in, Celebrating our Accomplishments: A voice of our Own (Winnipeg: Council of Canadians with Disabilities, 2011) 145 at 146.
• [10] Dulcie McCallum, "Up the the Basics: the Right to Decide" in, Celebrating our Accomplishments: A voice of our Own (Winnipeg: Council of Canadians with Disabilities, 2011) 145 at 149 [MaCallum].
• [11] CCD, supra note 8.
• [12] Canada, Explanatory Memorandum on the United Nations Convention on the Rights of Persons with Disabilities, (Ottawa, 2009) at 5 [Canada].
• [13] CCD, supra note 8.
• [14] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, App II, No 5.
• [15] Vanessa Yolles, The United Nations Convention on the Rights of the Child: A Practical Guide to Its Use in Canadian Courts (Toronto: UNICEF, 1998) at 3 [Yolles]; Malhotra, supra note 4 at 85.
• [16] See e.g. Re Mitchell and the Queen (1983),150 DLR (3d) 449 at 461-2, 42 OR (2d) 481.
• [17] Malhotra, supra note 5 at 85.
• [18] R Brian Howe & Katherine Covell, eds, Children's Rights in Canada: A Question of Commitment (Waterloo: Wilfred Laurier University Press, 2007) at 9 [Covell].
• [19] Anne F Bayefsky, International Human Rights Law: Use in Canadian Charter of Rights and Freedoms Litigation (Toronto: Butterworths,1992) at 30-33.
• [20] Daniels v the Queen, (1968) SCR 517 at 541, 2 DLR (3d) 1; Re Arrow River & Tributaries Slide & Boom Co., [1931] 2 DLR 216 at 217, 66 Ont L Rep 577.
• [21] Stéphane Beaulac, "Legal Interpretation in Canada: Opening Up Legislative Language as a Means to Internationalisation" (2010), online: Edinburgh School of Law Working Paper Series [http://ssrn.com/abstract=1551361] at 18 [Beaulac]; See also Stéphane Beaulac, "Recent Developments on the Role of International Law in Canadian Statutory Interpretation" (2004) 25 Stat L Rev 19.
• [22] R v Hape, 2007 SCC 26 at para 43, 2 SCR 292 [Hape].
• [23] C Emmanueli, Droit International Public (Montréal: Wilson & Lafleur, 1994) at 84-88.
• [24] Covell, supra note 18 at 5.
• [25] Yolles, supra note 15 at 1.
• [26] Yolles, supra note 15 at 2.
• [27] Hape, supra note 22 at para 53.
• [28] ibid.
• [29] Anglo-Norwegian Fisheries Case (United Kingdom v Norway), Order of 10 January 1951, [1951] ICJ Rep 116 at 138.
• [30] See generally Reference Re Powers of Ottawa (City) and Rockcliff Park, (1943) SCR 208, SCJ 19.
• [31] Beaulac, supra note 20 at 35.
• [32] Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c 11 [Charter].
• [33] Reference Re Public Service Employee Relations Act (Alberta), (1987) 1 SCR 313, SCJ 10 [Reference].
• [34] Beaulac, supra note 21 at 21.
• [35] Reference, supra note 33 at para 59.
• [36] Reference, supra note 33 at para 59.
• [37] ibid at para 60.
• [38] Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, 174 DLR (4th) 193 [Baker].
• [39] Convention on the Rights of the Child, adopted 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990) [CRC].
• [40] Baker, supra note 38 at paras 69-70.
• [41] Mugesera v Canada (Minister of Citizenship and Immigration), [2005] 2 SCR 100 at para 82, SCJ 39 [Mugesera].
• [42] Ruth Sullivan, Driedger on the Construction of Statutes 3d ed (Toronto & Vancouver: Butterworths, 1994) at 330.
• [43] Gerhard Von Glahn & James Larry Taulbee, Law Among Nations: An Introduction to Public International Law, 9th ed (New York: Pearson-Longman, 2010) at 407.
• [44] Covell, supra note 18 at 11.
• [45] ibid.
• [46] ibid at 12.
• [47] ibid at 396.
• [48] See Canadian Foundation for Children, Youth, and the Law v Canada (Attorney General), 2004 SCC 4, 1 SCR 76 at para 31.
• [49] CRC, supra note 39 art 3(1).
• [50] See Munar v Canada (Minister of Citizenship and immigration), (2006) 2 FCR 664, at para 34, 279 FTR 90; Su v Canada (Minister of Citizenship and immigration), (2004) FCJ 1081 at paras 7,10,13, 132 ACWS (3d) 140; Acevedo v Canada (Minister of Public Safety and Emergency Preparedness), (2007) FCJ 556 at para 24, ACF 556; Touchan v Canada (Minister of Citizenship and Immigration), (2005) FCJ 1616 at para 14, 149 ACWS (3d) 641.
• [51] See Martinez v Canada (Minister of Citizenship and Immigration), (2003) FCJ 1695, 127 ACWS (3d) 121(art 9 was considered); Manitoba (Director of Child and Family Services) v A.C. (2007) 26 TLWD 2641-004, MJ 26 (art 12 and 13 were considered); R v J.W. (2007) BCJ 468, BCPC 55 (art 19 was considered).
• [52] Youth Criminal Justice Act, SC 2002, c 1.
• [53] Covell, supra note 18 at 12.
• [54] Yolles, supra note 15 at 9.
• [55] Covell, supra note 18 at 401.
• [56] ibid at 13.
• [57] ibid at 5.
• [58] Canada, supra note 12 at 2.
• [59] ibid.
• [60] ibid at 4.
• [61] ibid.
• [62] Malhotra, supra note 5 at 87.
• [63] Yolles, supra note 15 at 2.
• [64] Malhotra, supra note 5 at 87.
• [65] Please note that this discussion will be elaborated upon under the section entitled "education".
• [66] Malhotra, supra note 5 at 87.
• [67] CCD, supra note 8.
• [68] Gerard Quinn, "Bringing the UN Convention on the Rights for persons with disabilities to life in Ireland" (2009) 37 British Journal of Learning Disabilities 245 at 247.
• [69] Mugesera, supra note 41 para 82.
• [70] Murray Hunt, Using International Human Rights in English Courts (Oxford: Hart Publishing, 1997) at 297 [Hunt].
• [71] See Yolles, supra note 15.
• [72] See Hunt, supra note 70 at 28-29 (For a discussion on the special status of international human rights norms).
• [73] Slaight Communications v Davidson [1989] 1 SCR 1038 at paras 1056-57, 59 DLR (4th) 416.
• [74] Malhotra, supra note 5 at 80.
• [75] Malhotra, supra note 5 at 80.
• [76] ibid at 84.
• [77] Brendina Miller, "Building an Inclusive and Accessible Canada: Inclusive Education" in, Celebrating our Accomplishments: A voice of our Own (Winnipeg: Council of Canadians with Disabilities, 2011) at 30 [Miller].
• [78] Malhotra, supra note 5 at 91.
• [79] ibid at 92.
• [80] Dianne Pothier, "But It's for Your Own Good" in Margot Young et al., eds, Poverty: Rights, Social Citizenship, and Legal Activism (Vancouver & Toronto: UBC Press, 2007) 40 at 46 [Pothier].
• [81] Miller, supra note 77.
• [82] Malhotra, supra note 5 at 92.
• [83] Eaton v Brant County Board of Education, [1997] 1 SCR 241, 142 DLR (4th) 385.
• [84] British Columbia (Ministry of Education) v Moore, (2010) BCCA 478, 326 DLR (4th) 77 [Moore].
• [85] Auton (Guardian ad litem of) v British Columbia (Minister of Health), (2000) BCSC 1142, 8 WWR 227.
• [86] Pothier, supra note 80 at 47.
• [87] Moore, supra note 84 at paras 88-110.
• [88] Moore, supra note 84 at para 148.
• [89] See CRPD, supra note 1 art 24(3)b)-c).
• [90] See ibid art 24(1).
• [91] Malhotra, supra note 5 at 105.
• [92] See CRPD, supra note 1 art 25.
• [93] Malhotra, supra note 5 at 90.
• [94] See Malhotra, supra note 5 at 103 (For a discussion on specific legislations in Ontario and British Columbia which include specific provisions to strengthen the CRPD).
• [95] Malhotra, supra note 5 at 87.
• [96] ibid at 88.
• [97] ibid.
• [98] ibid at 103.
• [99] Leobrera v Canada (Minister of Citizenship and Immigration), (2010) FCJ 692, 369 FTR 178.
• [100] Cole v Cole (Litigation guardian of), (2011) OJ 3418, ONSC 4090 [Cole].
• [101] ibid para 6.
• [102] Yuil v Canadian Union of Public Employees (2011) OHRTD 125, HRTO 126 [Yuil].
• [103] Yuil, supra note 100 at para 16.
• [104] ibid at para 17.
• [105] Hinze v Great Blue Heron Casino, [2011] OHRTD 93, HRTO 93.
• [106] ibid para 21.
• [107] See "Factum in D.A.I Case", online: Council of Canadians with Disabilities [http://www.ccdonline.ca/en/humanrights/dai-factum].
• [108] McCallum, supra note 10 at 148.
• [109] See especially Malhotra, supra note 5.
• [110] Dianne Pothier, "The Significance of Entrenchment of Equality Rights" (2003) 19 Sup Ct L Rev 65 at 72.
• [111] Laurie Beachell, "Community Expectations: Implementation, Monitoring of the CRPD" (Winter 2011), online: The Council of Canadians with Disabilities [http://www.ccdonline.ca/en/publications/voice/2011/03].
• [112] ibid.
• [113] Elionoir Flynn, From Rhetoric to Action: Implementing the UN Convention on the Rights of Persons with Disabilities (USA: Cambridge University Press, 2011) at 154.
• [114] "Introducing Vangelis Nikias: CCD's CRPD staff Specialist" online: The Council of Canadians with Disabilities [http://www.ccdonline.ca/en/publications/voice/2011/03].