A Constitution for the Disabled or a Disabled Constitution? Toward a New Approach to Disability for the Purposes of Section 15(1)

33 Pages Posted: 17 May 2006 Last revised: 10 Nov 2016

See all articles by Jon Penney

Jon Penney

University of Oxford - Oxford Internet Institute; Citizen Lab, University of Toronto; Princeton University - Center for Information Technology Policy; Harvard University - Berkman Klein Center for Internet & Society; Dalhousie University - Schulich School of Law

Date Written: October 25, 2010

Abstract

Despite important gains, people with disabilities continue to face significant barriers to wealth, labour, health services and education in Canadian society. This is a complex problem in need of a complex solution. Part of the challenge is formulating an approach to legal, political and social reform that focuses on effective institutional change. The Canadian Charter of Rights and Freedoms has an important role to play in this movement toward change. But there are problems with the Supreme Court of Canada's approach to disability rights in section 15 of the Charter. This article offers a new approach.

Drawing upon recent disability theory, the author argues that the present constitutional definition of disability is based on problematic and outdated models. Instead, the author advocates the Universalist understanding of disability, which attempts to demystify the concept and undermine the assumption that it applies only to small but homogenous categories or groups of people. Linking the Universalist theory of disability to the concept of substantive equality, the author outlines the analytic framework for a new universalist approach to disability in the Charter.

Keywords: equality, disability, disability theory, bickenbach, universal, constitutional law, labor laws, universalist, section 15(1), Charter, rights, disability rights, disabled, constitution, constitutional, health law, law and society, social theory, handicapped, law reform, legal rights

JEL Classification: I1, K19, K32, K33, K39, K41

Suggested Citation

Penney, Jonathon, A Constitution for the Disabled or a Disabled Constitution? Toward a New Approach to Disability for the Purposes of Section 15(1) (October 25, 2010). Journal of Law & Equality, Vol. 1, No. 1, 2002. Available at SSRN: https://ssrn.com/abstract=876878

Jonathon Penney (Contact Author)

University of Oxford - Oxford Internet Institute ( email )

1 St. Giles
University of Oxford
Oxford OX1 3PG Oxfordshire, Oxfordshire OX1 3JS
United Kingdom

Citizen Lab, University of Toronto ( email )

Munk School of Global Affairs
University of Toronto
Toronto, Ontario M5S 3K7
Canada

Princeton University - Center for Information Technology Policy ( email )

C231A E-Quad
Olden Street
Princeton, NJ 08540
United States

Harvard University - Berkman Klein Center for Internet & Society ( email )

Harvard Law School
23 Everett, 2nd Floor
Cambridge, MA Nova Scotia 02138
Canada

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
PO Box 15000
Halifax, Nova Scotia B3H 4R2
Canada

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