Conceptualizing Capacity: Interpreting Canada's Qualified Ratification of Article 12 of the UN Disability Rights Convention

Abstract

During the negotiations leading up to the United Nations Convention on the Rights of Persons with Disabilities (CRPD), States Parties vigorously debated the scope of Article 12, which establishes legal capacity for persons with disabilities “on an equal basis with others in all aspects of life.” The ambiguity of Article 12 has led to many interpretations that have been the subject of debate among human rights activists and academics. Developments in the jurisprudence and legislative reforms across several jurisdictions indicate that governments and courts have begun to grapple with what recognizing the right to legal capacity for persons with disabilities requires. The purpose of this paper is to examine whether Article 12 imposes an obligation on States Parties to use supported decision-making as an alternative to substituted decision-making, the system in place in most jurisdictions throughout the world. It is argued that the drafters of Article 12 intended to set out a strong presumption of capacity and to permit substituted decision-making only in rare circumstances. This paper uses Canada as an example of a jurisdiction that will need to contend with the legislative implications of Article 12 in light of its existing domestic laws.

Keywords: disability, health, capacity, United Nations, convention, human rights, Canada, United Kingdom