PART I: OVERVIEW OF DISABILITY DISCRIMINATION

A. The Shift from Paternalism to a Human Rights Framework

In the past, persons with disabilities were often treated as objects to be protected or pitied.³ Historically, it was believed that it was the person's particular impairment that created problems for the person living with a disability. Persons with disabilities were regarded as objects in need of medical intervention.⁴ The medical model of disability situated the problem of disability with the individual and not the society or environment in which she lived.

In Canada, prior to 1960, social policy pertaining to disability was based on an ethic of care and protection.⁵ Many people with disabilities were classed as patients and forced to reside in institutions. It was assumed that they were permanently incapacitated and therefore incompetent.⁶ Institutionalization isolated persons with disabilities from the community; segregation emphasized disability as different; and lack of public awareness regarding the needs and interests of persons with disabilities engendered myths and stereotypes about life with a disability.⁷

Over time, social policy evolved and persons with disabilities were moved from medical institutions into community facilities. Even so, persons with disabilities continued to experience isolation and exclusion from mainstream society. Because persons with disabilities were relegated to the margins of society, societal norms only reflected characteristics ascribed to ‘able-bodiedness’. For example, the built environment was only constructed for able-bodied persons who could walk, and not for persons who used assistive devices such as wheelchairs.

During the last couple of decades throughout the world, there has been a dramatic shift from paternalistic approaches to disability to the recognition of rights.⁸ As discussed later in this paper, Canadians with disabilities now enjoy both Constitutional and statutory protection of their human rights. Under a human rights framework, the focus has shifted from trying to ‘fix’ the individual, to evaluating how various social and economic processes can be reconfigured to accommodate the difference of disability.

B. The Criminalization of Persons Living with a Mental Disability: Institutionalization Revisited

1. Lack of Community Support

The institutional warehousing of persons with intellectual and mental disabilities is no longer an acceptable practice. The recognition that people can and do benefit from community services has rendered the likelihood of institutionalization more remote. In addition, institutions have been replaced by antipsychotic drugs, which are supposed to offer a more humane alternative to long-term hospitalization.⁹ As a result, the provision of community-based services is now recognized as the preferred approach.