Advancing Disability Equality Through Supported Decision-Making: The CRPD and the Canadian Constitution

Document Type

Book Chapter

Publication Date

8-20-2021

Source Publication

Mental Health, Legal Capacity, and Human Rights. Edited by Michael Ashley Stein et al., Cambridge University Press, 2021.

Abstract

Canada is known around the world for being a leader in disability rights and a champion of the Convention on the Rights of Persons with Disabilities (CRPD). Notwithstanding this reputation, Canada has failed to fully embrace Article 12, the right to equal protection under the law. Canada has given only a qualified endorsement of supported decision-making, which empowers individuals with mental disabilities to exercise the right to legal capacity by making and communicating decisions for themselves. Canadian law preserves substitute decision-making regimes, which can arbitrarily strip persons with mental disabilities of their decision-making authority. This chapter looks at Canadian federalism (division of powers) as an obstacle to Canada’s effort to implement its international human rights obligations. Taking a fresh approach, the author argues that the federal government could be constitutionally permitted to legislatively redesign legal capacity in a way that enhances the dignity and autonomy interests of people with mental disabilities by ensuring comprehensive Article 12 compliance. This, it is argued, can be done with constitutional authority never before acknowledged but demonstrably defensible on the basis of promoting the full and equal inclusion of persons with mental disabilities in Canadian society as a matter of national concern.

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