V. CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES
The Convention on the Rights of Persons with Disabilities^15 (CRPD) will be
discussed in detail at Chapter 10 of this Primer. However, it is important to note
that Article 12 of the CRPD is relevant to the issues of capacity and supported
decision making. Article 12 can be used as an aid to statutory interpretation.^16
Article 12 is entitled: “Equal recognition before the law”.^17 Listed among its
sections, are:
- States Parties shall recognize that persons with disabilities enjoy legal
capacity on an equal basis with others in all aspects of life.
Further, the concept of supported decision making is recognized in Article 12:
- States Parties shall take appropriate measures to provide access by
persons with disabilities to the support they may require in exercising
their legal capacity.
Finally, safeguards to protect against potential abuses of supported decision
making are also acknowledged:
- States Parties shall ensure that all measures that relate to the exercise of
legal capacity provide for appropriate and effective safeguards to prevent
abuse in accordance with international human rights law. Such
safeguards shall ensure that measures relating to the exercise of legal
capacity respect the rights, will, and preferences of the person, are free of
conflict of interest and undue influence, are proportional and tailored to the
person’s circumstances, apply for the shortest time possible, and are
subject to regular review by a competent, independent and impartial
authority or judicial body. The safeguards shall be proportional to the
degree to which such measures affect the person’s rights and interests.”
(^15) Convention on the Rights of Persons with Disabilities, G.A. Res. 61/106, U.N. GAOR, 61st
Sess., U.N. Doc. A/Res/61/106 (Dec. 13, 2006) available online at
http://www.un.org/disabilities/convention/conventionfull.shtml 16
17 Baker v. Canada (Minister of Citizenship and Immigration) [1999] 2 S.C.R. 817 at para 70^
CRPD, supra note 15.