²⁰ Ibid.

²¹ Canadian Association of Elizabeth Fry Societies, Elizabeth Fry Week 2002 - Fact Sheets, Human and Fiscal Costs of Prison, April 2002, [Online] Available: http://www.elizabethfry.ca/eweek02/factsht.htm#prison.

²² Corrections and Conditional Release Act (1992, c. 20) at s. 86, [Online]: Available: http://laws.justice.gc.ca/en/C-44.6/index.html.

²³ Supra note 15. See also letter from K. Pate to J. Laishes critiquing the Strategy, loc. cit. note 78.

²⁴ Supra note 22 at s. 4(a).

²⁵ Where We Stand: The Criminalization of People with Mental Illness, 2002 (Arlington, VA: National Alliance for the Mentally Ill), [Online] Available: http://www.nami.org/update/unitedcriminal.html.

²⁶ Ibid.

²⁷ Ibid.

²⁸ Supra note 9.

²⁹ See for example Disability Policy and Guidelines produced by the Ontario Human Rights Commission:

1.1 THE DEFINITION IN THE HUMAN RIGHTS CODE

Section 10 (1) of the Code defines "handicap" as follows:

"because of handicap" means for the reason that the person has or has had, or is believed to have or have had,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness, and without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impediment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or on a wheelchair or other remedial appliance or device,
(b) a condition of mental retardation or impairment,
(c) a learning disability, or a dysfunction in one or more of the processes involved in understanding or using symbols or spoken language,
(d) a mental disorder, or
(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

"Disability" should be interpreted in broad terms. It includes both present and past conditions, as well as a subjective component, namely, one based on perception of disability. Although sections 10(a) to (e) set out various types of conditions, it is clear that they are merely illustrative and not exhaustive. Protection for persons with disabilities under this subsection explicitly includes mental illness,⁸ developmental disabilities and learning disabilities. Even minor illnesses or infirmities can be "disabilities", if a person can show that she was treated unfairly because of the perception of a disability.⁹ Conversely, a person with an ailment who cannot show she was treated unequally because of a perceived or actual disability will be unable to meet even the prima facie test for discrimination. It will always be critical to assess the context of the differential treatment in order to determine whether discrimination has taken place, and whether the ground of disability is engaged.

Reference note 8 further explains

Mental illness has been described as "significant clinical patterns of behaviour or emotions associated with some level of distress, suffering (pain, death), or impairment in one or more areas of functioning (school, work, social and family interactions). At the root of this impairment are symptoms of biological, psychological or behavioural dysfunction, or a combination of these." See Canadian Psychiatric Association, Mental Illness and Work (brochure), online: Canadian Psychiatric Association homepage http://cpa.medical.org/MIAW/MIAW.asp at pg. 1

³⁰ Advocacy Resource Centre for the Handicapped, notes on inmates with disabilities, unpublished.

³¹ Bureau of Justice Statistics Special Report, Mental Health Treatment of Inmates and Probationers (July 1999, NCJ 174463), [Online], Available: http://www.ojp.usdoj.gov/bjs/abstract/mhtip.htm.