For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: https://www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: https://www.facebook.com/aodaalliance/

January 29, 2021

SUMMARY

Ontario is on the verge of a deeply troubling anniversary of Ontario Government inaction. This Sunday, January 31, 2021 marks the two year anniversary since the Ford Government received the blistering final report of the Independent Review of the Implementation of the Accessibility for Ontarians with Disabilities Act. This report was written by former Ontario Lieutenant Governor David Onley.

In the two years since it received this report, the Ford Government has announced no strong, comprehensive plan to implement its recommendations. Most of its recommendations have not been implemented at all. This is so even though Ontario’s Accessibility Minister, Raymond Cho said in the Legislature on April 10, 2019 that David Onley did a marvelous job and that Ontario is only 30 percent along the way towards the goal of becoming accessible to people with disabilities.

It is a wrenching irony that this anniversary of inaction comes right after we celebrated the 40th anniversary of Canada’s Parliament deciding to include equality for people with disabilities in the Canadian Charter of Rights and Freedoms. That momentous breakthrough took place on January 28, 1981, 40 years ago yesterday. The Accessibility for Ontarians with Disabilities Act was passed in no small part to implement that constitutional right to equality for people with disabilities.

Over the past two years, the AODA Alliance has spearheaded grassroots efforts to get the Ford Government to come forward with a strong and comprehensive plan to implement the Onley Report. We have offered many constructive recommendations. We have also offered the Government our help. On Twitter and in our AODA Alliance Updates, we have maintained an ongoing count of the number of days that had passed since the Government received the Onley Report, keeping the spotlight on this issue. As of today, it has been 729 days.

The Government has taken a few new actions on accessibility since it took office in June 2018, the most important of which are summarized below. But these have been slow, halting and inadequate.

MORE DETAILS

1. What the Onley Report Found About the Plight of Accessibility for Ontarians with Disabilities

In February 2018, the Ontario Government appointed David Onley to conduct a mandatory Independent Review of the AODA’s implementation and enforcement. He was mandated to recommend reforms needed to ensure that Ontario becomes accessible by 2025, the goal which the AODA requires. Based on public feedback he received, the Onley report found that the pace of change since 2005 for people with disabilities has been “glacial.” With under six years then left before 2025 (now less than four years), the Onley report found that “the promised accessible Ontario is nowhere in sight.” Onley concluded that progress on accessibility for people with disabilities under this law has been “highly selective and barely detectable.”

David Onley also found “this province is mostly inaccessible.” The Onley Report accurately concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley Report said damning things about years of the Ontario Government’s implementation and enforcement of the AODA. He in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

The Onley Report made concrete, practical recommendations to substantially strengthen the Government’s weak, flagging AODA implementation and enforcement. Set out below is the Onley Report’s summary of its recommendations. Many if not most of them echo the findings and recommendations that the AODA Alliance submitted in its detailed January 15, 2019 brief to the Onley Review. Among other things, David Onley called for the Government to substantially strengthen AODA enforcement, create new accessibility standards including for barriers in the built environment, strengthen the existing AODA accessibility standards, and reform the Government’s use of public money to ensure it is never used to create disability barriers.

2. What New Has the Ford Government Done on Accessibility Since the Onley Report?

It was good, but long overdue, that when releasing the Onley report back in March 2019, the Ford Government at last lifted its inexcusable 258 day-long freeze on the important work of three Government-appointed advisory committees. These committees were mandated under the AODA to recommend what regulations should be enacted to tear down disability barriers in Ontario’s education system impeding students with disabilities, and in Ontario’s health care system obstructing patients with disabilities. The AODA Alliance led the fight for the previous nine months to get the Ford Government to lift that freeze. Because of those delays, the Government delayed progress on accessibility for people with disabilities in health care and education. We are feeling the harmful effects of those delays during the COVID-19 pandemic.

The Ford Government’s main focus of its efforts on accessibility for people with disabilities has been on educating the public on the benefits of achieving accessibility for people with disabilities. That is work that the previous Government had been doing for over a decade. That alone will not bring about significant progress.

Since releasing the Onley Report, the Ford Government has held a couple of staged ministerial events, on January 28, 2019 and on October 29, 2019 (for which an inaccessible email invitation was sent), supposedly to announce a framework to implement the Onley Report. However they announced little, if anything, new. To the contrary, they focused on re-announcing things the Government had been doing for years, including at least one measure dating back to the Bob Rae NDP Government that was in power over a quarter century ago.

The Government has announced no plans to implement any of the recommendations for reform of accessibility standards from the Transportation Standards Development Committee (which submitted its final report to the Ontario Government in the spring of 2018, almost three years ago) or the final report of the Information and Communication Standards Development Committee (which submitted its final report some ten or eleven months ago).

The Government has had in hand for at least a month, if not more, the initial report of the Health Care Standards Development Committee. It must be posted for public comment. The Government has not posted it, or announced when it will do so. In the midst of this pandemic, swift action in the area of health care accessibility is desperately needed for people with disabilities and all Ontarians.

In the meantime, the one major new strategy on disability accessibility that the Ford Government has announced in its over two and a half years in office has been an action that David Onley never recommended and has, to our knowledge, never publicly endorsed. The Government diverted 1.3 million public dollars to the seriously problematic Rick Hansen Foundation’s private building accessibility certification program. We have made public serious concerns about that plan. The Government never acted on those concerns. Almost two years later, there is no proof that that misuse of public money led to the removal of any barriers in an Ontario building.

Despite announcing that the Government will take an all of Government approach to accessibility in response to the Onley Report, we have seen the opposite take place. TVO has not fixed the serious accessibility problems with its online learning resources, much needed during distance learning in this pandemic. The Government is building a new courthouse in downtown Toronto with serious accessibility problems about which disability advocates forewarned. During the pandemic, the Government has had circulated two successive critical care triage protocols which direct hospitals to use an approach to triage that would discriminate against some patients with disabilities and has refused to directly speak to us about these concerns. Over our objection, the Government has unleashed electric scooters on Ontarians, exposing people with disabilities to dangers to their safety and accessibility. This is all amply documented on the AODA Alliance’s website.

Over 2.6 million Ontarians with disabilities deserve better.

3. The Onley Report’s Summary of Its Recommendations

1. Renew government leadership in implementing the AODA.
Take an all-of-government approach by making accessibility the responsibility of every ministry.
Ensure that public money is never used to create or maintain accessibility barriers. Lead by example.
Coordinate Ontario’s accessibility efforts with those of the federal government and other provinces.

2. Reduce the uncertainty surrounding basic concepts in the AODA. Define accessibility.
Clarify the AODA’s relationship with the Human Rights Code.
Update the definition of disability.

3. Foster cultural change to instill accessibility into the everyday thinking of Ontarians.
Conduct a sustained multi-faceted public education campaign on accessibility with a focus on its economic and social benefits in an aging society.
Build accessibility into the curriculum at every level of the educational system, from elementary school through college and university.
Include accessibility in professional training for architects and other design fields.

4. Direct the standards development committees for K-12 and Post-Secondary Education and for Health Care to resume work as soon as possible.

5. Revamp the Information and Communications standards to keep up with rapidly changing technology.

6. Assess the need for further standards and review the general provisions of the Integrated Accessibility Standards Regulation.

7. Ensure that accessibility standards respond to the needs of people with environmental sensitivities.

8. Develop new comprehensive Built Environment accessibility standards through a process to:
Review and revise the 2013 Building Code amendments for new construction and major renovations Review and revise the Design of Public Spaces standards
Create new standards for retrofitting buildings.

9. Provide tax incentives for accessibility retrofits to buildings.

10. Introduce financial incentives to improve accessibility in residential housing.
Offer substantial grants for home renovations to improve accessibility and make similar funds available to improve rental units. Offer tax breaks to boost accessibility in new residential housing.

11. Reform the way public sector infrastructure projects are managed by Infrastructure Ontario to promote accessibility and prevent new barriers.

12. Enforce the AODA.
Establish a complaint mechanism for reporting AODA violations. Raise the profile of AODA enforcement.

13. Deliver more responsive, authoritative and comprehensive support for AODA implementation. Issue clear, in-depth guidelines interpreting accessibility standards.
Establish a provincewide centre or network of regional centres offering information, guidance, training and specialized advice on accessibility.
Create a comprehensive website that organizes and provides links to trusted resources on accessibility.

14. Confirm that expanded employment opportunities for people with disabilities remains a top government priority and take action to support this goal.

15. Fix a series of everyday problems that offend the dignity of people with disabilities or obstruct their participation in society.




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For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

For over 2.6 Million Ontarians with Disabilities, Sunday January 31, 2021 Will Be The Ford Government’s Sad Two Year Anniversary of Inaction On Disability Accessibility

January 29, 2021

            SUMMARY

Ontario is on the verge of a deeply troubling anniversary of Ontario Government inaction. This Sunday, January 31, 2021 marks the two year anniversary since the Ford Government received the blistering  final report of the Independent Review of the Implementation of the Accessibility for Ontarians with Disabilities Act. This report was written by former Ontario Lieutenant Governor David Onley.

In the two years since it received this report, the Ford Government has announced no strong, comprehensive plan to implement its recommendations. Most of its recommendations have not been implemented at all. This is so even though Ontario’s Accessibility Minister, Raymond Cho said in the Legislature on April 10, 2019 that David Onley did a “marvelous job” and that Ontario is only 30 percent along the way towards the goal of becoming accessible to people with disabilities.

It is a wrenching irony that this anniversary of inaction comes right after we celebrated the 40th anniversary of Canada’s Parliament deciding to include equality for people with disabilities in the Canadian Charter of Rights and Freedoms. That momentous breakthrough took place on January 28, 1981, 40 years ago yesterday. The Accessibility for Ontarians with Disabilities Act was passed in no small part to implement that constitutional right to equality for people with disabilities.

Over the past two years, the AODA Alliance has spearheaded grassroots efforts to get the Ford Government to come forward with a strong and comprehensive plan to implement the Onley Report. We have offered many constructive recommendations. We have also offered the Government our help. On Twitter and in our AODA Alliance Updates, we have maintained an ongoing count of the number of days that had passed since the Government received the Onley Report, keeping the spotlight on this issue. As of today, it has been 729 days.

The Government has taken a few new actions on accessibility since it took office in June 2018, the most important of which are summarized below. But these have been slow, halting and inadequate.

            MORE DETAILS

 1. What the Onley Report Found About the Plight of Accessibility for Ontarians with Disabilities

In February 2018, the Ontario Government appointed David Onley to conduct a mandatory Independent Review of the AODA’s implementation and enforcement. He was mandated to recommend reforms needed to ensure that Ontario becomes accessible by 2025, the goal which the AODA requires. Based on public feedback he received, the Onley report found that the pace of change since 2005 for people with disabilities has been “glacial.” With under six years then left before 2025 (now less than four years), the Onley report found that “…the promised accessible Ontario is nowhere in sight.” Onley concluded that progress on accessibility for people with disabilities under this law has been “highly selective and barely detectable.”

David Onley also found “…this province is mostly inaccessible.” The Onley Report accurately concluded:

“For most disabled persons, Ontario is not a place of opportunity but one of countless, dispiriting, soul-crushing barriers.”

The Onley Report said damning things about years of the Ontario Government’s implementation and enforcement of the AODA. He in effect found that there has been a protracted, troubling lack of Government leadership on this issue, even though two prior Government-appointed AODA Independent Reviews called for renewed, strengthened leadership:

“The Premier of Ontario could establish accessibility as a government-wide priority with the stroke of a pen. Our previous two Premiers did not listen to repeated pleas to do this.”

The Onley Report made concrete, practical recommendations to substantially strengthen the Government’s weak, flagging AODA implementation and enforcement. Set out below is the Onley Report’s summary of its recommendations. Many if not most of them echo the findings and recommendations that the AODA Alliance submitted in its detailed January 15, 2019 brief to the Onley Review. Among other things, David Onley called for the Government to substantially strengthen AODA enforcement, create new accessibility standards including for barriers in the built environment, strengthen the existing AODA accessibility standards, and reform the Government’s use of public money to ensure it is never used to create disability barriers.

 2. What New Has the Ford Government Done on Accessibility Since the Onley Report?

It was good, but long overdue, that when releasing the Onley report back in March 2019, the Ford Government at last lifted its inexcusable 258 day-long freeze on the important work of three Government-appointed advisory committees. These committees were mandated under the AODA to recommend what regulations should be enacted to tear down disability barriers in Ontario’s education system impeding students with disabilities, and in Ontario’s health care system obstructing patients with disabilities. The AODA Alliance led the fight for the previous nine months to get the Ford Government to lift that freeze. Because of those delays, the Government delayed progress on accessibility for people with disabilities in health care and education. We are feeling the harmful effects of those delays during the COVID-19 pandemic.

The Ford Government’s main focus of its efforts on accessibility for people with disabilities has been on educating the public on the benefits of achieving accessibility for people with disabilities. That is work that the previous Government had been doing for over a decade. That alone will not bring about significant progress.

Since releasing the Onley Report, the Ford Government has held a couple of staged ministerial events, on January 28, 2019 and on October 29, 2019 (for which an inaccessible email invitation was sent), supposedly to announce a framework to implement the Onley Report. However they announced little, if anything, new. To the contrary, they focused on re-announcing things the Government had been doing for years, including at least one measure dating back to the Bob Rae NDP Government that was in power over a quarter century ago.

The Government has announced no plans to implement any of the recommendations for reform of accessibility standards from the Transportation Standards Development Committee (which submitted its final report to the Ontario Government in the spring of 2018, almost three years ago) or the final report of the Information and Communication Standards Development Committee (which submitted its final report some ten or eleven months ago).

The Government has had in hand for at least a month, if not more, the initial report of the Health Care Standards Development Committee. It must be posted for public comment. The Government has not posted it, or announced when it will do so. In the midst of this pandemic, swift action in the area of health care accessibility is desperately needed for people with disabilities and all Ontarians.

In the meantime, the one major new strategy on disability accessibility that the Ford Government has announced in its over two and a half years in office has been an action that David Onley never recommended and has, to our knowledge, never publicly endorsed. The Government diverted 1.3 million public dollars to the seriously problematic Rick Hansen Foundation’s private building accessibility “certification” program. We have made public serious concerns about that plan. The Government never acted on those concerns. Almost two years later, there is no proof that that misuse of public money led to the removal of any barriers in an Ontario building.

Despite announcing that the Government will take an “all of Government” approach to accessibility in response to the Onley Report, we have seen the opposite take place. TVO has not fixed the serious accessibility problems with its online learning resources, much needed during distance learning in this pandemic. The Government is building a new courthouse in downtown Toronto with serious accessibility problems about which disability advocates forewarned. During the pandemic, the Government has had circulated two successive critical care triage protocols which direct hospitals to use an approach to triage that would discriminate against some patients with disabilities and has refused to directly speak to us about these concerns. Over our objection, the Government has unleashed electric scooters on Ontarians, exposing people with disabilities to dangers to their safety and accessibility. This is all amply documented on the AODA Alliance’s website.

Over 2.6 million Ontarians with disabilities deserve better.

 3. The Onley Report’s Summary of Its Recommendations

  1. Renew government leadership in implementing the AODA.

Take an all-of-government approach by making accessibility the responsibility of every ministry.

Ensure that public money is never used to create or maintain accessibility barriers.

Lead by example.

Coordinate Ontario’s accessibility efforts with those of the federal government and other provinces.

  1. Reduce the uncertainty surrounding basic concepts in the AODA.

Define “accessibility”.

Clarify the AODA’s relationship with the Human Rights Code.

Update the definition of “disability”.

  1. Foster cultural change to instill accessibility into the everyday thinking of Ontarians.

Conduct a sustained multi-faceted public education campaign on accessibility with a focus on its economic and social benefits in an aging society.

Build accessibility into the curriculum at every level of the educational system, from elementary school through college and university.

Include accessibility in professional training for architects and other design fields.

  1. Direct the standards development committees for K-12 and Post-Secondary Education and for Health Care to resume work as soon as possible.
  1. Revamp the Information and Communications standards to keep up with rapidly changing technology.
  1. Assess the need for further standards and review the general provisions of the Integrated Accessibility Standards Regulation.
  1. Ensure that accessibility standards respond to the needs of people with environmental sensitivities.
  1. Develop new comprehensive Built Environment accessibility standards through a process to:

Review and revise the 2013 Building Code amendments for new construction and major renovations

Review and revise the Design of Public Spaces standards

Create new standards for retrofitting buildings.

  1. Provide tax incentives for accessibility retrofits to buildings.
  1. Introduce financial incentives to improve accessibility in residential housing.

Offer substantial grants for home renovations to improve accessibility and make similar funds available to improve rental units.

Offer tax breaks to boost accessibility in new residential housing.

  1. Reform the way public sector infrastructure projects are managed by Infrastructure Ontario to promote accessibility and prevent new barriers.
  1. Enforce the AODA.

Establish a complaint mechanism for reporting AODA violations.

Raise the profile of AODA enforcement.

  1. Deliver more responsive, authoritative and comprehensive support for AODA implementation.

Issue clear, in-depth guidelines interpreting accessibility standards.

Establish a provincewide centre or network of regional centres offering information, guidance, training and specialized advice on accessibility.

Create a comprehensive website that organizes and provides links to trusted resources on accessibility.

  1. Confirm that expanded employment opportunities for people with disabilities remains a top government priority and take action to support this goal.
  1. Fix a series of everyday problems that offend the dignity of people with disabilities or obstruct their participation in society.



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Accessibility Best Practices Across Canada


Many separate accessibility standards development processes exist in Canada. Ontario, Manitoba, and Nova Scotia all have laws that mandate creation of provincial accessibility standards. In addition, the Accessible Canada Act mandates accessibility standards that apply to organizations under federal jurisdiction. However, the government of Canada intends to coordinate federal and provincial accessibility laws. Moreover, the third review of the AODA recommends that the Ontario government should support this aim by aligning its accessibility law, the AODA, with the laws of other provinces and the country. If the governments work together to make these laws more similar, the AODA standards development process may change to align with laws in other places across the country. In this article, we explore accessibility best practices across Canada.

Accessibility Best Practices Across Canada

The creation of accessibility standards is a long process. First, standards development committees or organizations must consult about what rules and guidelines a standard should contain. This consultation includes diverse perspectives from the many people and groups whose lives and businesses the standard will impact, including:

  • People with disabilities
  • Representatives from the industries or sectors that a standard will one day apply to
  • Members of government organizations responsible for those industries or sectors

When the committee or organization has drafted a standard, the public often has the opportunity to view this draft. In addition, members of the public can offer suggestions to improve the draft. The committee or organization then has the chance to revise the proposed standard based on those public reactions. After revising the draft, the committee or organization resubmits it to the minister in charge of the accessibility law. The minister must recommend that the standard be accepted in whole, in part, or with modifications.

After a standard becomes law, organizations must learn what the standard’s guidelines are and how to comply with them. For example, current standards in the AODA require organizations to buy, create, or use accessible:

As a result, many years may pass between the time committees identify barriers needing removal through standards and the time those barriers are removed.

Creating Accessibility Best Practices

In the third review of the AODA, the Honourable David Onley notes that there are three standards development committees currently in the process of creating standards for education and healthcare. The terms of reference for these committees allow them to recommend best practices for workers in both sectors. These best practices could support education and healthcare workers to make their fields more accessible. Moreover, best practices can reach the public before standards, because they take less time to develop than standards. As a result, workers in both fields can start implementing best practices while they are waiting for the standards.

Moreover, the Accessibility Directorate of Nova Scotia has published guidelines to help organizations improve their accessibility. Although Nova Scotia does not yet have any accessibility standards, these guidelines allow organizations to gain experience with identifying, removing, and preventing barriers. As a result, organizations may be better prepared to comply with standards in a more timely manner when those standards become law.

As governments work together to align their accessibility laws, some AODA standards may change so that law in Ontario corresponds more closely with standards in other provinces, or with the Accessible Canada Act. If Ontario follows the example of Nova Scotia, as well as the recommendation in the third review of the AODA, the province may become more accessible in less time.




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Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities


A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE FOR IMMEDIATE RELEASE

January 28, 2021 Toronto: Forty years ago today was the most important single event to protect the constitutional equality rights of millions of people with disabilities, in Canada’s first 114 years. Four decades ago today, the Joint Committee of the Senate and House of Commons on the Constitution of Canada (the Joint Committee) voted to add equality rights for people with disabilities to the proposed Charter of Rights, then being debated. (The disability amendment)

Weeks earlier, in October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament to add a new Charter of Rights to Canada’s Constitution. The proposed Charter of Rights included an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, courts could not interprete section 15 to protect disability equality.

Without the benefit of fax machines, email, the internet or social media (which were years away), people with disabilities campaigned for the disability amendment. Their blitz got little media coverage.

In fall 1980, three major disability organizations appeared before the Joint Committee to call for the disability amendment. In response, on January 12, 1981, Justice Minister Jean Chretien said no to the disability amendment.

Despite that, people with disabilities tenaciously kept up the pressure. Victory came on January 28, 1981, when the Trudeau Government withdrew its opposition to the disability amendment. That day, the Joint Committee voted to pass the disability amendment. Canada became the first western democracy to explicitly protect equality for people with disabilities in its constitution. (Hansard transcript below)

Over the forty years that followed, the disability amendment led to some important court victories for disability rights. It also helped drive the passage of several accessibility laws: Ontario’s Accessibility for Ontarians with Disabilities Act 2005, Manitoba’s Accessibility for Manitobans Act 2013, Nova Scotia’s Accessibility Act 2017, and the federal Accessible Canada Act2019.

Canada should be proud of what was achieved forty years ago today in the name of equality and full participation for people with disabilities, said David Lepofsky who was one of the disability advocates who appeared before Parliament to advocate for the disability amendment and who now chairs the non-partisan AODA Alliance that campaigns for disability accessibility. However, despite the disability amendment, over six million people with disabilities in Canada still face far too many unfair barriers in areas like employment, transportation, education, health care and access to buildings. Top of mind today is the serious danger that patients with disabilities will suffer unjustified disability discrimination in access to life-saving critical medical care if the COVID-19 pandemic overloads Ontario hospitals, requiring the rationing or triage of critical care, dressed up as objective medical science. Those of us who fought for the disability amendment could not have imagined that forty years later, we’d need to use that victory to try to prevent disability discrimination in access to life-saving critical medical care.

In months of public debate over the Charter of Rights four decades ago, the only new constitutional right that was added to the Charter, and which was not in the original draft, was equality for people with disabilities something the media has also rarely covered. Even lesser known was a second disability rights victory for people who are deaf, deafened or hard of hearing at the Joint Committee four decades ago today. The Joint Committee also amended section 14 of the Charter, to guarantee the constitutional right to an interpreter for deaf persons when participating in legal proceedings. Previously, section 14’s wording did not guarantee the right to an interpreter to persons needing one due to hearing loss.

Contact: AODA Alliance Chair David Lepofsky, [email protected] For more background, check out:

1. Transcript of the three disability organizations’ presentations in the 1980 fall to the Joint Committee calling for the Charter disability amendment.

2. Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee, on behalf of the Canadian National Institute for the Blind. He is now chair of the AODA Alliance.

3. Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee a decision the Federal Government reversed forty years ago today.

4. Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.

Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada Hansard Excerpts January 28, 1981

The following took place on Charter ss. 14 and 15 as it pertains to people with disabilities:

Mr. Robinson: Thank you, Mr. Chairman.
I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:
14. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment. Et en français, it est proposé
Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:
«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»
The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.
Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.
The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the [Page 84]
New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.
Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will notthe intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems. I am informed, for example
Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.
The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way. Mr. Robinson: Thank you, Mr. Chairman.
I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.
Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.
Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.
Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.
As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.
I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to [Page 85]
deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.
Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.
Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.
We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time. The Joint Chairman (Mr. Joyal): Thank you very much.
Mr. Robinson to conclude.
Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.
Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words or other authority in which the person is involved, they would be protected in those circumstances?
Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.
You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary. [Page 86]
So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings. The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.
Mr. Robinson: Yes, Mr. Chairman.
Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.
I would also suggest that the words other authority have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.
I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice. The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
Amendment negatived.
The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.
Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read ed or who is deaf to make it conform technically with the page.
Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following: ed or who is deaf has the right to the assistance of an
I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait. [Translation]
Senator Tremblay: Just to please my colleague who could very well read it himself. [Text]
Il est proposé
Que le projet de Loi constitutionnelle de 1981
j’imagine
[Page 87]
soit modifié par substitution
Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication. soit modifié par substitution, à l’article 14, de ce qui suit:
«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.» [Translation]
The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay. [Text]
Mr. McGrath, to propose the motion in the usual way?
Mr. McGrath: Thank you very much, Mr. Chairman.
I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment. Mr. Chrétien: Yes. Yes.
Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.
However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.
It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.
Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless. Mr. Crombie: Two good events on one motion. Two!
The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case. An hon. Member: I am sure they heard footsteps.
The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote. Amendment agreed to.
[Page 88]
Clause 14 as amended agreed to.
On Clause 15Equality before the law and equal protection of the law.
The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.
There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word revised on it, and the next subamendment in relation to the same main amendment is the one identified as CP8(1), Clause 15, page 6.
So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6. Monsieur Corbin.
M. Corbin: Merci, monsieur le president.
Or, je propose
Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit: «Droits à l’égalité
15. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»
Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following: Equality Rights
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age. [Translation]
Thank you, Mr. Chairman.
Le coprésident (M. Joyal): Thank you, Mr. Corbin.
[Text]
I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6. Mr. Robinson: Thank you, Mr. Chairman.
[Page 89]
I am very pleased to move the subamendment as follows
Mr. Epp: Just a point of order, Mr. Chairman.
I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?
The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.
Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment. The Joint Chairman (Mr. Joyal): No, that is not the way.
Go on, Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman.
The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words Every individual is equal» and substituting the following:
in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.
And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: physical or mental disability,; (c) adding to Clause 15(1) the following: marital status,; (d) adding to Clause 15(1) the following: sexual orientation,; (e) adding to Clause 15(1) the following: political belief,; (f) adding to Clause 15(1) the following: lack of means; and (g) moving the word or so that it appears immediately after the penultimate proscribed ground of discrimination.
Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal. In French, Mr. Chairman, if you would like me to read this in French. Il est proposé
Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:
a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:
«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de [Page 90]
toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»
b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,» c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,» d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,» e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,» f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»
g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié. Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».
Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause. The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party. Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so. The Joint Chairman (Mr. Joyal): The honourable David Crombie. Mr. Crombie: Thank you, Mr. Chairman.
Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words or age in Clause 15(1) thereof and substituting therefor the following words: age or mental or physical disability.
En français, il est proposé
Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»
Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment. Now, I am not sure we can continue to take this prosperity any longer!
However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis- [Page 91]
abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment. Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.
Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on. Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay! Mr. Chrétien: If I can have five minutes I will call the Prime Minister.
It is with great pleasure that I accept the amendment on behalf of the Government.
I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow. You can have lots of beer on my health.
Thank you for your good representation.
The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent. Amendment agreed to.
The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way. Mr. Robinson: Thank you, Mr. Chairman.
I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.
I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.
Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.
Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.
I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.
We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted. [Page 92]
Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.
Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.
Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.
The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.
The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.
I would invite you to restrict your remarks to the contents of the proposed amendment.




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Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities


A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
NEWS RELEASE FOR IMMEDIATE RELEASE

January 28, 2021 Toronto: Forty years ago today was the most important single event to protect the constitutional equality rights of millions of people with disabilities, in Canada’s first 114 years. Four decades ago today, the Joint Committee of the Senate and House of Commons on the Constitution of Canada (the Joint Committee) voted to add equality rights for people with disabilities to the proposed Charter of Rights, then being debated. (The disability amendment)

Weeks earlier, in October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament to add a new Charter of Rights to Canada’s Constitution. The proposed Charter of Rights included an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, courts could not interprete section 15 to protect disability equality.

Without the benefit of fax machines, email, the internet or social media (which were years away), people with disabilities campaigned for the disability amendment. Their blitz got little media coverage.

In fall 1980, three major disability organizations appeared before the Joint Committee to call for the disability amendment. In response, on January 12, 1981, Justice Minister Jean Chretien said no to the disability amendment.

Despite that, people with disabilities tenaciously kept up the pressure. Victory came on January 28, 1981, when the Trudeau Government withdrew its opposition to the disability amendment. That day, the Joint Committee voted to pass the disability amendment. Canada became the first western democracy to explicitly protect equality for people with disabilities in its constitution. (Hansard transcript below)

Over the forty years that followed, the disability amendment led to some important court victories for disability rights. It also helped drive the passage of several accessibility laws: Ontario’s Accessibility for Ontarians with Disabilities Act 2005, Manitoba’s Accessibility for Manitobans Act 2013, Nova Scotia’s Accessibility Act 2017, and the federal Accessible Canada Act2019.

Canada should be proud of what was achieved forty years ago today in the name of equality and full participation for people with disabilities, said David Lepofsky who was one of the disability advocates who appeared before Parliament to advocate for the disability amendment and who now chairs the non-partisan AODA Alliance that campaigns for disability accessibility. However, despite the disability amendment, over six million people with disabilities in Canada still face far too many unfair barriers in areas like employment, transportation, education, health care and access to buildings. Top of mind today is the serious danger that patients with disabilities will suffer unjustified disability discrimination in access to life-saving critical medical care if the COVID-19 pandemic overloads Ontario hospitals, requiring the rationing or triage of critical care, dressed up as objective medical science. Those of us who fought for the disability amendment could not have imagined that forty years later, we’d need to use that victory to try to prevent disability discrimination in access to life-saving critical medical care.

In months of public debate over the Charter of Rights four decades ago, the only new constitutional right that was added to the Charter, and which was not in the original draft, was equality for people with disabilities something the media has also rarely covered. Even lesser known was a second disability rights victory for people who are deaf, deafened or hard of hearing at the Joint Committee four decades ago today. The Joint Committee also amended section 14 of the Charter, to guarantee the constitutional right to an interpreter for deaf persons when participating in legal proceedings. Previously, section 14’s wording did not guarantee the right to an interpreter to persons needing one due to hearing loss.

Contact: AODA Alliance Chair David Lepofsky, [email protected] For more background, check out:

1. Transcript of the three disability organizations’ presentations in the 1980 fall to the Joint Committee calling for the Charter disability amendment.

2. Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee, on behalf of the Canadian National Institute for the Blind. He is now chair of the AODA Alliance.

3. Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee a decision the Federal Government reversed forty years ago today.

4. Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.

Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada Hansard Excerpts January 28, 1981

The following took place on Charter ss. 14 and 15 as it pertains to people with disabilities:

Mr. Robinson: Thank you, Mr. Chairman.
I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:
14. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment. Et en français, it est proposé
Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:
«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»
The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.
Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.
The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the [Page 84]
New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.
Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will notthe intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems. I am informed, for example
Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.
The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way. Mr. Robinson: Thank you, Mr. Chairman.
I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.
Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.
Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.
Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.
As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.
I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to [Page 85]
deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60. Thank you, Mr. Chairman.
The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.
Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.
Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.
Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.
We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time. The Joint Chairman (Mr. Joyal): Thank you very much.
Mr. Robinson to conclude.
Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.
Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words or other authority in which the person is involved, they would be protected in those circumstances?
Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.
You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary. [Page 86]
So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings. The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.
Mr. Robinson: Yes, Mr. Chairman.
Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.
I would also suggest that the words other authority have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.
I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice. The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
Amendment negatived.
The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.
Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read ed or who is deaf to make it conform technically with the page.
Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following: ed or who is deaf has the right to the assistance of an
I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait. [Translation]
Senator Tremblay: Just to please my colleague who could very well read it himself. [Text]
Il est proposé
Que le projet de Loi constitutionnelle de 1981
j’imagine
[Page 87]
soit modifié par substitution
Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication. soit modifié par substitution, à l’article 14, de ce qui suit:
«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.» [Translation]
The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay. [Text]
Mr. McGrath, to propose the motion in the usual way?
Mr. McGrath: Thank you very much, Mr. Chairman.
I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment. Mr. Chrétien: Yes. Yes.
Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.
However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.
It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.
Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless. Mr. Crombie: Two good events on one motion. Two!
The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case. An hon. Member: I am sure they heard footsteps.
The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote. Amendment agreed to.
[Page 88]
Clause 14 as amended agreed to.
On Clause 15Equality before the law and equal protection of the law.
The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.
There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word revised on it, and the next subamendment in relation to the same main amendment is the one identified as CP8(1), Clause 15, page 6.
So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6. Monsieur Corbin.
M. Corbin: Merci, monsieur le president.
Or, je propose
Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit: «Droits à l’égalité
15. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»
Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following: Equality Rights
15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age. [Translation]
Thank you, Mr. Chairman.
Le coprésident (M. Joyal): Thank you, Mr. Corbin.
[Text]
I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6. Mr. Robinson: Thank you, Mr. Chairman.
[Page 89]
I am very pleased to move the subamendment as follows
Mr. Epp: Just a point of order, Mr. Chairman.
I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?
The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.
Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment. The Joint Chairman (Mr. Joyal): No, that is not the way.
Go on, Mr. Robinson.
Mr. Robinson: Thank you, Mr. Chairman.
The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words Every individual is equal» and substituting the following:
in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.
And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: physical or mental disability,; (c) adding to Clause 15(1) the following: marital status,; (d) adding to Clause 15(1) the following: sexual orientation,; (e) adding to Clause 15(1) the following: political belief,; (f) adding to Clause 15(1) the following: lack of means; and (g) moving the word or so that it appears immediately after the penultimate proscribed ground of discrimination.
Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal. In French, Mr. Chairman, if you would like me to read this in French. Il est proposé
Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:
a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:
«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de [Page 90]
toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»
b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,» c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,» d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,» e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,» f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»
g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié. Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».
Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause. The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.
I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party. Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so. The Joint Chairman (Mr. Joyal): The honourable David Crombie. Mr. Crombie: Thank you, Mr. Chairman.
Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words or age in Clause 15(1) thereof and substituting therefor the following words: age or mental or physical disability.
En français, il est proposé
Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»
Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment. Now, I am not sure we can continue to take this prosperity any longer!
However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis- [Page 91]
abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment. Thank you very much.
The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.
Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on. Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay! Mr. Chrétien: If I can have five minutes I will call the Prime Minister.
It is with great pleasure that I accept the amendment on behalf of the Government.
I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow. You can have lots of beer on my health.
Thank you for your good representation.
The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent. Amendment agreed to.
The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way. Mr. Robinson: Thank you, Mr. Chairman.
I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.
I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.
Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.
Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.
I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.
We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted. [Page 92]
Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.
Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.
Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.
The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.
The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.
I would invite you to restrict your remarks to the contents of the proposed amendment.




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Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities – A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Today is the 40th Anniversary of Parliament Agreeing to Guarantee A Constitutional Right to Equality to People with Disabilities – A Victory Disability Advocates Now Invoke to Prevent Disability Discrimination in Access to Life-Saving Critical Care if Hospitals Start to Triage Critical Care

January 28, 2021 Toronto: Forty years ago today was the most important single event to protect the constitutional equality rights of millions of people with disabilities, in Canada’s first 114 years. Four decades ago today, the Joint Committee of the Senate and House of Commons on the Constitution of Canada (“the Joint Committee”) voted to add equality rights for people with disabilities to the proposed Charter of Rights, then being debated. (“The disability amendment”)

Weeks earlier, in October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament to add a new Charter of Rights to Canada’s Constitution. The proposed Charter of Rights included an equality rights provision, section 15. However, section 15 did not include equality rights for people with disabilities. Unless amended, courts could not interprete section 15 to protect disability equality.

Without the benefit of fax machines, email, the internet or social media (which were years away), people with disabilities campaigned for the disability amendment. Their blitz got little media coverage.

In fall 1980, three major disability organizations appeared before the Joint Committee to call for the disability amendment. In response, on January 12, 1981, Justice Minister Jean Chretien said no to the disability amendment.

Despite that, people with disabilities tenaciously kept up the pressure. Victory came on January 28, 1981, when the Trudeau Government withdrew its opposition to the disability amendment. That day, the Joint Committee voted to pass the disability amendment. Canada became the first western democracy to explicitly protect equality for people with disabilities in its constitution. (Hansard transcript below)

Over the forty years that followed, the disability amendment led to some important court victories for disability rights. It also helped drive the passage of several accessibility laws: Ontario’s Accessibility for Ontarians with Disabilities Act 2005, Manitoba’s Accessibility for Manitobans Act 2013, Nova Scotia’s Accessibility Act 2017, and the federal Accessible Canada Act2019.

“Canada should be proud of what was achieved forty years ago today in the name of equality and full participation for people with disabilities,” said David Lepofsky who was one of the disability advocates who appeared before Parliament to advocate for the disability amendment and who now chairs the non-partisan AODA Alliance that campaigns for disability accessibility. “However, despite the disability amendment, over six million people with disabilities in Canada still face far too many unfair barriers in areas like employment, transportation, education, health care and access to buildings. Top of mind today is the serious danger that patients with disabilities will suffer unjustified disability discrimination in access to life-saving critical medical care if the COVID-19 pandemic overloads Ontario hospitals, requiring the rationing or “triage” of critical care, dressed up as objective medical science. Those of us who fought for the disability amendment could not have imagined that forty years later, we’d need to use that victory to try to prevent disability discrimination in access to life-saving critical medical care.”

In months of public debate over the Charter of Rights four decades ago, the only new constitutional right that was added to the Charter, and which was not in the original draft, was equality for people with disabilities – something the media has also rarely covered. Even lesser known was a second disability rights victory for people who are deaf, deafened or hard of hearing at the Joint Committee four decades ago today. The Joint Committee also amended section 14 of the Charter, to guarantee the constitutional right to an interpreter for deaf persons when participating in legal proceedings. Previously, section 14’s wording did not guarantee the right to an interpreter to persons needing one due to hearing loss.

Contact: AODA Alliance Chair David Lepofsky, [email protected]

For more background, check out:

  1. Transcript of the three disability organizations’ presentations in the 1980 fall to the Joint Committee calling for the Charter disability amendment.
  1. Captioned video of the December 12, 1980 presentation by David Lepofsky to the Joint Committee, on behalf of the Canadian National Institute for the Blind. He is now chair of the AODA Alliance.
  1. Transcript of the initial refusal on January 12, 1981 by federal Justice Minister Jean Chretien to agree to the disability amendment, which he announced during his appearance before the Joint committee – a decision the Federal Government reversed forty years ago today.
  1. Online captioned lecture at the Osgoode Hall Law School by AODA Alliance Chair David Lepofsky on the history of the campaign for the Charter disability amendment.

Joint Committee of the Senate and the House of Commons of Canada on the Constitution of Canada Hansard Excerpts January 28, 1981

The following took place on Charter ss. 14 and 15 as it pertains to people with disabilities:

Mr. Robinson: Thank you, Mr. Chairman.

I would then move this amendment as follows, that Clause 14 of the proposed constitution act, 1980 be amended by striking out lines 40 to 44 on page 5 and substituting the following:

  1. Every person has the right to the assistance of an interpreter in any proceedings before a court, tribunal, commission, board or other authority in which the person is involved or is a party or a witness if the person does not understand or speak the language in which the proceedings are conducted, or is subject to a hearing impairment.

Et en français, it est proposé

Que l’article 14 du projet de Loi constitutionnelle de 1980 soit modifié par substitution, aux lignes 40 à 43, de ce qui suit:

«14. Les personnes qui ne comprennent pas ou ne parlent pas la langue dans laquelle se déroulent des procédures devant une instance judiciaire, quasi-judiciaire, administrative ou autre, ont droit à l’assistance d’un interprète; les personnes atteintes de déficiences auditives ont également ce droit dans les mêmes circonstances.»

The Joint Chairman (Mr. Joyal): Before I invite you to give an explanation, Mr. Robinson, the honourable James McGrath on a point of order.

Mr. McGrath: I am just wondering, Mr. Chairman, at first glance it would seem that our amendment, which is CP-7, Clause 14, page 5 should come first.

The Joint Chairman (Mr. Joyal): The only reason I have called the amendment proposed by the New Democratic Party, I refer to you the previous indication that the Chair would call in order the amendments, and so far as the New Democratic Party amendment deals with line 40 and your amendment deals with line 43, that is why I have to call according to the previous procedure, I have to call the New Democratic Party amendment first even though the Chair realizes that if the

[Page 84]

New Democratic Party amendment is accepted by this Committee, the amendment identified CP-7 is already included in the previous amendment, but if the amendment by the New Democratic Party is not accepted that does not prevent you from moving the amendment identified as CP-7.

Mr. Chrétien: Mr. Chairman, for a matter of clarification, you gave the background of the discussion on Clause 14. We cannot accept the amendment of Mr. Robinson and I will explain why, but we can accept the amendment of the Conservative Parvty and so perhpas we should deal with the two and I can give the explanation to Mr. Robinson so that it will not—the intention is all the same but the way of drafting one is better than the drafting of the other, and the Robinson amendment, if I can use that term, the 150th amendment, it is too vague and could create all sorts of problems.

I am informed, for example …

Mr. Robinson: Mr. Chairman, on a point of order. Mr. Chairman, with great respect to the Minister, if I might have an opportunity to at least explain the amendment before it is shot down by the Minister. That is, I believe the normal procedure.

The Joint Chairman (Mr. Joyal): I will invite Mr. Robinson to present his amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I know that the Minister still has an open mind on the subject and will be listening with great interest and will not be subject to any impairment involving hearing. it is one thing not to listen, Mr. Chairman, it is another thing to be subjected to a hearing impairment.

Mr. Chairman, the purpose of this amendment is to expand the protection presently accorded in Clause 14 to an interpreter, and it is not something which is unusual or vague or difficult to apply, as the Minister suggested, because with respect, Mr. Minister, through you, Mr. Chairman, the wording is taken precisely from the terms of Bill C-60.

Now, once again, Mr. Minister, I would have assumed that the same people who advised you on Bill C-60 would be advising you today and I am sure that they would not have wished to advise you at that time to accept something which was vague or impossible to interpret.

Mr. Chairman, it is not a question of vagueness, it is a question of scope. In Clause 14, as the amendment would read, we would be going beyond proceedings in which a person was a party or witness, but we would be going to proceedings in which a person was involved, to use the words of the proposed amendment, and we would also be expanding the words to deal with other authorities.

As I say, this is the proposal in Bill C-60, it was accepted by the MacGuigan-Lamontagne Committee, it was not considered by the government two years ago to be vague or difficult to interpret. I suggest that the amendment was reasonable and that it should be accepted. I would hope that it would be accepted by the government.

I would also say that I am pleased to hear that the government is prepared to accept the amendment with respect to

[Page 85]

deafness which is being proposed both by the Conservative Party and the New Democratic Party but I would hope that the government would recognize the desirability of expanding this in terms which it was presented in Bill C-60.

Thank you, Mr. Chairman.

The Joint Chairman (Mr. Joyal): Thank you very much, Mr. Robinson.

Mr. Chrétien: I will ask my advisor to give the explanation but the fact that it was accepted in Bill C·60, the deputy minister is not the same, perhaps he is a judge now, so we have a different troop and to explain why we feel after reflection what is better.

Mr. Ewaschuk: Obviously in relation to the proceedings the administration of justice is conducted by a provincial authorities. The expression in which the person is involved means more than the party or the witness so you can have all kinds of interested parties come to court and this would in fact give them a constitutional right to have interpreters so they could understand the proceedings.

Now, oftentimes that is so. If it is a language problem, the interpreter is there, and there is translation that goes on and there is certain accommodation, but if you were to do that for everybody who came in, who is somehow involved, they may be in fact a relative or so who does not understand the language but they are not a witness, they are not the accused and such, it could have certain important ramifications for the adminis· tration of justice and I think that the position we take is that, yes, we are not opposed to that but we would let the provincial try to work that out rather than saying that they have to in fact do it.

We say the minimal, yes, it should be for the witness, it should be for the party, extended to the deaf, but that is as far as we are willing to go at this particular time.

The Joint Chairman (Mr. Joyal): Thank you very much.

Mr. Robinson to conclude.

Mr. Robinson: Just a question, Mr. Chairman, if I may, to the officials or to the Minister.

Is it my understanding that Clause 14 as the government is proposing now would not cover the right to an interpreter of a person who is, let us say, arrested or detained; if they are being questioned, that they would not be protected by this right to an interpreter, that is my reading at least of Clause 14. Whereas, under the proposed amendment, because of the insertion of the words “or other authority” in which the person is involved, they would be protected in those circumstances?

Mr. Ewaschuk: Well, I kind of doubt that. When you are talking about procedings before another authority, I doubt that you would get a court characterizing that as being police interrogating somebody.

You must keep in mind again, and we have gone over this before, that the Crown has to prove a statement as voluntary, so if you have two English policemen who were in fact interrogating somebody who did not understand English, it is very unlikely that the judge is going to find that that statement is voluntary.

[Page 86]

So rather than say that the police have to have to bring in, anytime there is a question on whether or not somebody was being interrogated can understand English, they will do that as a matter of course if they want to get that statement in, but it would not be an absolute right in relation to proceedings because I just do not see that as being characterized as proceedings.

The Joint Chairman (Mr. Joyal): Mr. Robinson to conclude.

Mr. Robinson: Yes, Mr. Chairman.

Just to conclude, I would remind the Minister through you, Mr. Chairman, of the recent case in Toronto in which this very point was canvassed and raised in connection with an East Indian who was questioned under circumstances in which it was alleged that he did not understand the language in which he was being questioned.

I would also suggest that the words “other authority” have been interpreted by our courts to include circumstances in which a person is being questioned by the police, that the person is an authority figure, when we are dealing, for example, with confessions, and that is the way Canadian jurisprudence has interpreted those words.

I think, Mr. Chairman, with great respect to the present deputy minister, that the advice which was given in 1978 was very sound advice and I would suggest that this Committee should accept that advice.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

Amendment negatived.

The Joint Chairman (Mr. Joyal): I would like then to invite the motion identified as CP-7, Clause 14, page 5, the motion proposed by the Conservative Party to be moved and invite the Honourable James McGrath to so do.

Mr. McGrath: Mr. Chairman, before I read the amendment there is a slight change. The amendment should read “ed or who is deaf” to make it conform technically with the page.

Mr. Chairman, the amendment is as follows, I move that Clause 14 of the proposed constitution act, 1980, be amended by striking out line 43 on page 5 and substituting the following:

ed or who is deaf has the right to the assistance of an”

I will ask my colleague, Senator Tremblay, if he will read it en français, s’il vous plait.

[Translation]

Senator Tremblay: Just to please my colleague who could very well read it himself.

[Text]

Il est proposé

Que le projet de Loi constitutionnelle de 1981 …

j’imagine

[Page 87]

soit modifié par substitution …

Il faut continuer à dire 1980, n’est-ce pas? Merci, monsieur le président, de cette indication.

… soit modifié par substitution, à l’article 14, de ce qui suit:

«14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu’ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu’ils sont atteints de surdité, ont droit à l’assistance d’un interprète.»

[Translation]

The Joint Chairman (Mr. Joyal): Thank you, Senator Tremblay.

[Text]

Mr. McGrath, to propose the motion in the usual way?

Mr. McGrath: Thank you very much, Mr. Chairman.

I must be getting overtired or perhaps I must be developing a hearing impediment because I thought I hear the Minister say he was going to accept our amendment.

Mr. Chrétien: Yes. Yes.

Mr. McGrath: Well, Mr. Chairman, now that that fact has been so dramatically verified I expect any minute to ask the Minister to give consent to have the amendment withdrawn to be moved on a subsequent amendment. It would be more in keeping with the experience we have had here.

However, Mr. Chairman, this is a serious amendment and I am very, very encouraged by the fact that the government has seen fit to accept it because there are a number of people in this country who have a serious hearing handicap. Indeed, I stand to be corrected on this, but there are over 200,000 Canadians who are deaf or have a hearing disability to the point where they are clinically or legally deaf, and it is a serious problem because their handicap is not apparent and it becomes compounded when they are party to legal proceedings. That is why this amendment is so important.

It is not without interest to note that we are moving in the direction of recognizing the rights of these people, for example in broadcasting they have mechanical devices now in the public broadcasting system in the United States for the hard of hearing or the deaf. I understand that we are moving in that direction in Canada as well.

Mr. Chairman, I am gratified that the government has accepted our amendment and, as a matter of fact, I am speechless.

Mr. Crombie: Two good events on one motion. Two!

The Joint Chairman (Mr. Joyal): I will not speak on behalf of the government, of course, honourable James McGrath, but you might wonder why the government has changed its mind about that and I told you last week that some see the light because they found their hearts and some change their mind because they hear the voices, and that is probably what happened in the present case.

An hon. Member: I am sure they heard footsteps.

The Joint Chairman (Mr. Joyal): I see that the honourable members are ready for the vote.

Amendment agreed to.

[Page 88]

Clause 14 as amended agreed to.

On Clause 15—Equality before the law and equal protection of the law.

The Joint Chairman (Mr. Joyal): I will invite, then, honourable members to take the amendments in relation to Clause 15. There are a certain number of amendments dealing with Clause 15, especially taking into account that very clause of the proposed motion has two subclauses, Clause 15(1) and Clause 15(2), and in order to deal with the two subclauses in order I would like to invite honourable members to take the amendment identified G-20, Clause 15(1) page 6.

There are two subamendments, to that amendment. The first subamendment that the Chair will invite honourable members to take is the one identified N-21, Clause 15(1), page 6, revised, that is the one with the word “revised” on it, and the next subamendment in relation to the same main amendment is the one identified as CP—8(1), Clause 15, page 6.

So it means that the first subamendment we will be dealing with is the last one that I have mentioned, CP-8(1), Clause 15, page 6, but before we deal with that second subamendment I would like to invite Mr. Irwin to move, or Monsieur Corbin, to move the one identified G-20, subclause 15(1), Page 6.

Monsieur Corbin.

  1. Corbin: Merci, monsieur le president.

Or, je propose

Que le paragraphe 15(1) du projet de Loi constitutionnelle de 1980 soit modifié par substitution, à la rubrique qui précède la ligne 1, et aux lignes 1 à 5, page 6, de ce qui suit:

«Droits à l’égalité

  1. (1) La Loi ne fait acception de person ne et s’applique également à tous et tous ont droit à la même protection et au même bénéfice de la loi, indépendamment de toute discrimination, notamment des discriminations fondées sur la race, l’origine nationale ou ethnique, la couleur, la religion, le sexe ou l’âge.»

Mr. Chairman, I would like to move that the heading preceding Clause 15 and Clause 15(1) of the proposed constitution act, 1980, be amended by striking out the heading immediately preceding line 1 and lines 1 to 5 on page 6 and substituting the following:

“Equality Rights

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex or age.”

[Translation]

Thank you, Mr. Chairman.

Le coprésident (M. Joyal): Thank you, Mr. Corbin.

[Text]

I would like to invite Mr. Robinson on behalf of the New Democratic Party to introduce the subamendment revised N-21, Clause 15(1), page 6.

Mr. Robinson: Thank you, Mr. Chairman.

[Page 89]

I am very pleased to move the subamendment as follows …

Mr. Epp: Just a point of order, Mr. Chairman.

I must have misunderstood you. I take it now that you are going to ask for the New Democratic subamendment first and then call for our subamendment to the subamendment?

The Joint Chairman (Mr. Joyal): Yes. That is what I have already stated, Mr. Epp.

Mr. Epp: I did not understand it that way. I thought you asked for our subamendment to the amendment.

The Joint Chairman (Mr. Joyal): No, that is not the way.

Go on, Mr. Robinson.

Mr. Robinson: Thank you, Mr. Chairman.

The amendment is as follows, first of all in English, this is to the proposal of the government, I move that the proposed amendment to Clause 15(1) of the proposed constitution act 1980, be amended by (a) striking out everything immediately following the words “Every individual is equal» and substituting the following:

in, before and under the law and has the right to equal protection and equal benefit of the law, and to access to employment, accommodation and public services, without unreasonable distinction on grounds including sex, race, national or ethnic origin, colour, religion or age.

And then, Mr. Chairman, there are six additional subsections. The first is: (b) adding to Clause 15(1) the following: “physical or mental disability,”; (c) adding to Clause 15(1) the following: “marital status,”; (d) adding to Clause 15(1) the following: “sexual orientation,”; (e) adding to Clause 15(1) the following: “political belief,”; (f) adding to Clause 15(1) the following: “lack of means”; and (g) moving the word “or” so that it appears immediately after the penultimate proscribed ground of discrimination.

Mr. Chairman, those are our proposed amendments to Clause 15(1) to recognize some very fundamental and important grounds of discrimination which are not recognized in the government’s proposal.

In French, Mr. Chairman, if you would like me to read this in French.

Il est proposé

Que le projet de modification du paragraphe 15 (1) du projet de Loi constitutionnelle de 1980 soit modifié par:

  1. a) substitution, à ce qui suit le membre de phrase «La loi ne fait exception de personne», de ce qui suit:

«Tous ont droit à la même protection et au même bénéfice de la loi, ainsi qu’à l’accès aux emplois, au logement et aux services publics, indépendamment de

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toute distinction abusive fondee notamment sur le sexe, la race, l’origine nationale ou ethnique, la couleur, la religion ou l’âge.»

  1. b) adjonction, au paragraphe 15 (1), de ce qui suit: «les déficiences physiques ou mentales,»
  2. c) adjonction, au paragraphe 15 (1), de ce qui suit: «la situation familiale,»
  3. d) adjonction, au paragraphe 15 (1), de ce qui suit: «l’inclination sexuelle,»
  4. e) adjonction, au paragraphe 15 (1), de ce qui suit: «les croyances politiques,»
  5. f) adjonction, au paragraphe 15 (1), de ce qui suit: «l’insuffisance de moyens.»
  6. g) insertion de la conjonction «or» avant la dernière distinction discriminatoire énoncée au paragraphe 15 (1) tel que modifié.

Monsieur le president, je crois que cela doit etre «ou» et non’ pas «or».

Mr. Chairman, again these are proposed additions and changes to Clause 15(1) and I am very pleased to note that the Conservative Party will also be proposing the addition of physical and mental disability, supporting our amendment on that particular subclause.

The Joint Chairman (Mr. Joyal): Thank you, Mr. Robinson.

I would like to invite the honourable James McCrath to move the amendment on behalf of the Conservative Party.

Mr. McGrath: Mr. Chairman, my colleague, Mr. Crombie will do so.

The Joint Chairman (Mr. Joyal): The honourable David Crombie.

Mr. Crombie: Thank you, Mr. Chairman.

Mr. Chairman, dealing with Clause 15 and our amendment to it, which is numbered CP-8(1) on the sheet, I wish to move that the proposed amendment to Clause 15 of the proposed constitution act, 1980, be amended by striking out the words “or age” in Clause 15(1) thereof and substituting therefor the following words:

age or mental or physical disability.

En français, il est proposé

Que le projet de modification de I’article 15 du porjet de loi constitution ne! de 1980 soit modi fie par la substitution, a «ou l’âge», au paragraphe (1), de «l’âge ou les déficiences mentales ou physiques.»

Mr. Chairman, speaking to the motion, my understanding is that the government is willing to accept our amendment.

Now, I am not sure we can continue to take this prosperity any longer!

However, on behalf of those groups, organizations and individuals who find themselves physically and mentally dis-

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abled in this country, I would like, on their behalf, since I am the spokesman on their behalf at this point, to offer my thanks to the government for their acceptance of the amendment.

Thank you very much.

The Joint Chairman (Mr. Joyal): Thank you, the honourable David Crombie.

Mr. Chrétien: But who told you that I have accepted the amendment. I have not yet spoken. I think it was a good put on.

Mr. Crombie: I have already spoken to Bob Kaplan and he has said it is okay!

Mr. Chrétien: If I can have five minutes I will call the Prime Minister.

It is with great pleasure that I accept the amendment on behalf of the Government.

I do not think we should debate it. There was a great deal of debate. I was very anxious that we should proceed tonight. They were preparing to have a big group tomorrow.

You can have lots of beer on my health.

Thank you for your good representation.

The Joint Chairman (Mr. Joyal): So the amendment is carried, I should say wholeheartedly with unanimous consent.

Amendment agreed to.

The Joint Chairman (Mr. Joyal): I would like, then, to invite honourable members to come back to the first subamendment and to invite Mr. Robinson to introduce the amendment in the usual way.

Mr. Robinson: Thank you, Mr. Chairman.

I certainly would like to express my sincere gratitude to the Minister for listening to the concerns of both the physically and mentally disabled.

I know the Minister will recognize that this is in many ways unprecedented and a historic occasion, because it is a right which has not yet been recognized in many international covenants and charters; I think the Minister and the government deserves full credit for accepting the recommendations of the subcommittee and of many other Canadians.

Certainly, I want to join with my colleague and friend, Mr. Crombie, in thanking you, Mr. Minister, for accepting this very important amendment.

Mr. Chrétien: I forgot to mention, with your permission, Mr. Chairman, that I think we should thank all the members of the special committee, presided over by Mr. David Smith, who has worked very hard indeed.

I would like to thank Mr. Smith and all members of the Committee who have worked all summer very hard on the problem.

We are entering a new field, and quite properly breaking good ground. I think we should be careful that we should not take it to the extent of opening the door to a list that would be meaningless. It is on the list as an amendment which will be accepted.

[Page 92]

Mr. Robinson: Once again, Mr. Chairman, I know that the Minister will listen carefully to the representations made on the amendment which we will be proposing, just as he has listened with care to the representations of the groups representing the physically and mentally disabled.

Mr. Chairman, I also cannot resist pointing out that this fundamental right to protection from discrimination on grounds of physical and mental disability is surely one which should be accorded to all Canadians right across Canada, in every province in Canada, and that no provincial government should be permitted to opt out of providing basic and fundamental rights and freedoms to the handicapped.

Mr. Chairman, perhaps my Conservative colleagues would pay particular attention to that point, that the effect of their proposed amending formula, would grant rights to the handicapped in some provinces and not to the handicapped in other provinces which chose to opt out.

The Joint Chairman (Mr. Joyal): Mr. Robinson, I regret to interrupt, but as I have already expressed on other occasions, I think you should address yourself to the content of the proposed amendment.

The amending formula will come later on in our discussions; but at this point we are dealing on a clause which does not have any reference to the amending formula as such.

I would invite you to restrict your remarks to the contents of the proposed amendment.



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Accessibility Standards Development Processes Across Canada


Many separate accessibility standards development processes exist in Canada. Ontario, Manitoba, and Nova Scotia all have laws that mandate creation of provincial accessibility standards. In addition, the Accessible Canada Act mandates accessibility standards that apply to organizations under federal jurisdiction. However, the government of Canada intends to coordinate federal and provincial accessibility laws. Moreover, the third review of the AODA recommends that the Ontario government should support this aim by aligning its accessibility law, the AODA, with the laws of other provinces and the country. If the governments work together to make these laws more similar, the AODA standards development process may change to align with laws in other places across the country.

Accessibility Standards Development Processes Across Canada

Standards Development Committees

In Ontario, standards development committees are responsible for creating and maintaining AODA standards. Committee members decide which rules a standard should include.

committee members can be:

  • People with disabilities
  • Members of organizations representing people with disabilities
  • Representatives from the industries or sectors that the standard will one day apply to
  • Members of government organizations responsible for those industries or sectors
  • Other people or organizations that the minister in charge of the AODA chooses to include
  • Experts who advise the committee
  • Members of the Accessibility Standards Advisory Council

Moreover, the minister sets deadlines for the different stages of the committee’s work. The minister also specifies which kinds of services or organizations a standard can or cannot govern. In addition, the minister may choose to pay committee members for their time and expenses. The minister must make all this information, within a document called the terms of reference, public on a government website or other location. Likewise, minutes of committee meetings must also appear where the public can read them.

Once a committee proposes an accessibility standard, the proposal must become available to the public so that people can comment on it. The committee then has the chance to revise the proposed standard based on those public reactions and resubmit it to the minister. The minister must recommend to the Lieutenant Governor that the standard be accepted in whole, in part, or with modifications.

AODA standards development committees must re-examine standards, determine whether they are fulfilling objectives, and make any needed changes, in five (5) years or less after a standard has been accepted. This process ensures that standards remain up-to-date and deal with any new barriers that arise after their creation.

Centralized Standards Development Councils

Under Ontario’s current system of standards development, the Minister in charge of the AODA must form a new committee for every standard. In contrast, multiple reviews of the AODA have recommended a more centralized system, where one organization creates standards. Ontario may develop such a system through the Accessibility Standards Advisory Council. This central organization advises the Minister about the process for creating new standards. Furthermore, the Council works with the Minister on programs that spread public awareness of the AODA and its purpose. However, this council is not directly involved with creating each standard.

In contrast, under the Accessible Canada Act, the standards development process is more centralized. An organization called Accessibility Standards Canada will develop and revise accessibility standards. However, ACCESSIBILITY STANDARDS CANADA can create committees to help in this process. Nonetheless, the organization remains responsible for creating each standard and submitting it.

Similarly, under the Accessibility for Manitobans Act, a centralized organization called the Accessibility Advisory Council is responsible for creating standards, with possible help from committees.

Like Ontario’s committee members, the members of ACCESSIBILITY STANDARDS CANADA and Manitoba’s Accessibility Advisory Council are appointed. Furthermore, over half of ACCESSIBILITY STANDARDS CANADA’s Board of Directors must be people with disabilities, while other members must represent the sectors that must comply with the final standards. Finally, these centralized councils must also make their meetings, and the standards they create, available to the public.

Other Responsibilities of Accessibility Standards Canada

Moreover, ACCESSIBILITY STANDARDS CANADA also has other responsibilities similar to Ontario’s Accessibility Advisory Council. ACCESSIBILITY STANDARDS CANADA must provide information, goods, and services related to the standards it creates. Moreover, ACCESSIBILITY STANDARDS CANADA will also research new ways to prevent and remove barriers, and encourage other organizations to do similar research. Finally, ACCESSIBILITY STANDARDS CANADA will spread awareness about how to identify, remove, and prevent accessibility barriers.

ACCESSIBILITY STANDARDS CANADA is an alternative process to Ontario’s reliance on separate standards development committees. Furthermore, this national standards development organization is not only in charge of developing standards. Instead, it is also responsible for research and spreading awareness about accessibility. The AODA may one day change to align more closely with the Accessible Canada Act by centralizing its accessibility standards development processes.




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The Ford Government’s January 13, 2021 Critical Care Triage Protocol Would Make Every Triage Doctor a Law Unto Themselves, Denying Due Process or Fair Procedure to Patients Whose Lives Are In Jeopardy


Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: https://www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: https://www.facebook.com/aodaalliance/

January 26, 2021

SUMMARY

We are deeply concerned that under the Ford Government’s January 13, 2021 triage protocol each frontline doctor would be a law unto themselves when deciding which patients to refuse life-saving critical care. This would happen if critical care must be rationed because the COVID-19 pandemic overloads Ontario hospitals. On January 18, 2021, we made that secret protocol public and wrote the Ford Government to strongly object to it. Ontario’s NDP has called for it to be rescinded.

In this Update we focus on one powerful and very disturbing illustration of how doctors would wrongly become a law unto themselves. They would too often be able to consciously or unconsciously bring to bear their own personal and subjective preferences when deciding which patients they will deny life-saving critical care. The January 13, 2021 triage protocol which was secretly sent to Ontario hospitals gives no due process or procedural fairness to a patient who needs life-saving critical care, but whom a doctor might refuse critical care.

This protocol would only go into effect if the Government-appointed Ontario Critical Care COVID Command Centre decides that Ontario hospitals have no more room and staff to handle all the patients who need critical care. In that event, the January 13, 2021 triage protocol requires that critical care be rationed or triaged. Some patients needing that care will be refused it. It will be doctors who make that life and death decision, according to the January 13, 2021 triage protocol. We believe that doctors do not want to be put in that awful position, and won’t want to be a law unto themselves. However, that is where the Ford Government is now allowing them to be positioned.

Below we explain this due process issue and then set out the paper trail that proves beyond doubt that our concerns are fully justified. We alerted Ontario’s Health Minister Christine Elliott of these concerns within days of our getting our hands on the January 13, 2021 triage protocol, writing as follows in the AODA Alliance’s January 18, 2021 letter to the Minister:

Under this protocol, the patient whose life is at stake is in effect treated as a passive body lying on a gurney, over whom doctors will deliberate, make decisions, and then communicate the good or bad news (offering emotional support if the news is bad). There is no opportunity for the patient or their supporters to have input into the assessment.

For more background on this issue, check out:

1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.

2. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.

3. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

4. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.

5. The AODA Alliance website’s health care web page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

MORE DETAILS

1. The Ford Government’s Denial of Due Process to Patients At Risk of Dying Due to a Refusal of Critical Medical Care, If Triage Becomes Necessary

Here is a full explanation of this issue. What do we mean by due process or procedural fairness? When a decision is going to be made that could harm your basic rights, you should be told about it in advance. You should be told why. You should be given a chance to be heard on the question, to present information that can help you get a decision in your favour. If the decision goes against you, you should have a chance to appeal it.

This due process all helps make the decision a fair one and an accurate one. This due process is especially important when the right at stake is the very right to live. That is the right at stake for a patient needing critical care if there is to be critical care triage.

The January 13, 2021 triage protocol does not give a patient or their family any right to be heard or have input into a decision over critical care triage. It gives them no right of appeal if the doctors decide to refuse them the critical care they need. It requires the doctors to give the triaged patient the bad news and to arrange for them to get some medical care, short of the critical care they need to survive. At most, it only requires doctors to explain at least some of the triage process to the patient at risk.

Making due process even more important here, the January 13, 2021 triage protocol specifically directs doctors to use the Clinical Frailty Scale to assess some patients’ eligibility for critical care, if triage is taking place. Disability community advocates have called for that Scale not to be used, because it flagrantly discriminates based on disability. The Ontario Human Rights Commission has also called for that Scale not to be used. Yet the Ontario Government’s Bioethics Table and Ontario Critical Care COVID Command Centre have ignored that, and pressed ahead with the use of that Scale.

That Clinical Frailty Scale requires a doctor to rate whether the patient can perform a list of activities of daily living without assistance, namely dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. The Clinical Frailty Scale was not designed to be used to decide who lives and who dies during critical care triage.

Even if the Clinical Frailty Scale were not disability discriminatory, a patient, whose life can depend in part on their score, should have a chance to have a say in whether they can do those activities of daily living. They and their family will know much more about this than an emergency room doctor who has never before met them. The same might also be said for at least some other factors that a doctor decides to use when deciding whether to refuse critical care for a patient who needs it.

An appeal from a decision refusing critical care to a patient who needs it is also an important due process safeguard to help protect patients. It helps ensure that doctors, making triage decisions, are considering the right factors and are not taking into account improper factors. Without an appeal, frontline triage doctors and the administrators who oversee them have no imminent check on their decisions. A lawsuit fought out years later by the patient’s family will come too late to save a life.

The need for proper due process for a patient whose life is at stake is even more pressing, since the head of a Toronto hospital’s Intensive Care Unit, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital, has said that these triage decisions under the January 13, 2021 triage protocol will be difficult, and may well involve the doctor making guesstimates and improvising. He explained that doctors have no experience with making such decisions. He told this to the CBC’s January 23, 2021 edition of White Coat Black Art. We included Dr. Warner’s quotations in the January 25, 2021 AODA Alliance Update.

How can all this due process be done in the context of an overloaded hospital system in the middle of a raging pandemic? The Ford Government-appointed Bioethics Table asked us that very question last summer. After extensive research, we put forward practical and constructive recommendations designed for that very context fully five months ago. We set them out below.

This package of due process protections is not included in the January 13, 2021 triage protocol with the exception of a patient being told about at least some of the triage process to which they may be subjected. There has been no explanation by the Ford Government or its Ontario Critical Care COVID Command Centre (which approved the January 13, 2021 triage protocol) or by the advisory Bioethics Table of why these important due process protections have been left out.

There is no reason given for this denial of due process especially when the January 13, 2021 triage protocol lists procedural fairness as a feature that a critical care triage protocol should include. The Government and its Ontario Critical Care COVID Command Centre and Bioethics Table have held no public discussions of this due process issue. These decisions are all being made behind closed doors, by unidentified people. This is not the openness, transparency and public accountability that the Ford Government promised Ontarians. It certainly does not protect the most vulnerable, which Ontarians were promised by Premier Ford.

The January 13, 2021 triage protocol was evidently written by doctors. The Government claims that it was written by experts for experts. Yet the medical profession, which plays a vital role during this pandemic, has no training in or expertise in due process, human rights, or fundamental constitutional rights. There is something very wrong with this picture.

We here again make public the paper trail that shows this palpable failure by the Ford Government and those to whom it has delegated responsibility to handle this issue behind closed doors. We set out key parts of that paper trail below. There is no doubt more secret documentation on point in the hands of the Government and its Bioethics Table and Ontario Critical Care COVID Command Centre:

1. Last summer, the Bioethics Table shared with the AODA Alliance and some other disability advocates an earlier revised draft of a triage protocol, one which precedes its later September 11, 2020 recommendations. We posted that draft protocol online on July 16, 2020. We know it is hard to keep all these drafts straight.

That earlier draft triage protocol included no due process for patients whatsoever. Under it, the patient and their family had no right to be heard by those deciding the patient’s fate. There was no assurance that the family can get their family doctor to chime in and add their voice to the discussion. There was no right of appeal to anyone else in the hospital.

There was no duty on the doctors or hospitals to give the patient or their family basic rights advice. This was so even though the revised draft medical triage protocol gives superficial and inadequate lip service to due process concerns, stating:

Due process considerations (e.g., transparency about reasons for triage decisions) are especially important in this context. Hospitals should plan for how they might proactively prepare patients and families for possible outcomes of the triage process as well as how they would respond transparently and compassionately to patient or family concerns should these arise.

Appendix E to that earlier revised draft protocol sets out a sample of what a doctor might tell a patient and their family if it has been decided to refuse them a needed ventilator due to a ventilator shortage. That seriously deficient text gave the patient and family no rights advice or other basic information of what they can do if they wish to dispute the decision and to have it reconsidered.

That earlier draft Medical triage protocol in substance wrongly and summarily rejected the idea of any appeal, stating:

critically ill patients must be assessed rapidly in a dynamic and over-taxed environment, a formal process for patients and families to appeal triage decisions may not be feasible or appropriate (e.g., if critical care is contrary to the patient’s wishes).

2. During our summer virtual meetings with the Government’s Bioethics Table, we were asked to give ideas on what kinds of due process should be included in the triage protocol, that are sensitive to the time pressures during such triage. We did so in our August 30, 2020 written submission to the Bioethics Table. We set the relevant part of those submissions out below. They were posted on line last summer, and shared with the Ford Government and not just its Bioethics Table.

3. After that, the Bioethics Table included some, but not all of our due process recommendations in its September 11, 2020 report to the Ford Government. The Government kept that report secret for three months, forcing us to vigourously advocate for its public release. We set out the relevant parts of that report below that address due process for patients.

4. On November 13, 2020, the Government or its Ontario Critical Care COVID Command Centre sent a secret new draft triage protocol to Ontario hospitals. We have not seen it. However, we know from a later undated letter from Dr. Andrew Baker, a member of the Ontario Critical Care COVID Command Centre, to Ontario hospitals that that draft protocol included some sort of right of appeal within the health care system for triage patients who are refused critical care they need. That letter listed the following as some of the things that have been removed from the draft protocol that was earlier circulated to hospitals on November 13, 2020:

1. Removal of the requirement of a triage team that makes ICU bed allocation decisions; 2. Removal of reference to an external appeals committee;

5. We have learned that the Bioethics Table later delivered a secret revised report to the Government on critical care triage on January 12, 2021. We do not know what it said about due process for patients or anything else.

6. Next, the January 13, 2021 triage protocol was secretly sent to all hospitals by or on behalf of the Ford Government. It did not include the package of due process rights for patients facing critical care triage that we have asked for and that the Bioethics Table earlier recommended in its September 11, 2020 report, except for advising patients about at least some of the triage process that the January 13, 2021 triage protocol mandates (one in which the patient has no say). We do not know who decided to rip out further due process from the protocol, or who they consulted, or why they decided to do this.

2. What the AODA Alliance Told the Government-Appointed External and Advisory Bioethics Table on August 30, 2020

The AODA Alliance’s August 30, 2020 written submissions to the Government’s Bioethics Table included:
The First Issue: The Revised Draft Triage Protocol is Seriously Lacking in Due Process for All Patients

1. The Bottom Line

The critical medical triage protocol needs to be revised to provide strong, mandatory, reliable due process protections that ensure fair and accurate decisions in triage cases. This is especially important since the decision of whether a patient will be given critical care is a life and death decision. The Canadian Charter of Rights and Freedoms guarantees in section 7 the right to life, and the right not to be deprived of one’s life except in accordance with the principles of fundamental justice. Due process must be the most rigourous when the right to life is at stake.

2. The Rule of Law and the Need for Any Triage Protocol to Be Enacted in Law

As a vital starting point, any critical care triage protocol, including the due process safeguards in it, should be enacted in a law. Such a protocol is specifically aimed at a situation where a patient could be denied critical medical care that they need, despite the fact that they need it. It is a basic aspect of the rule of law that a person’s fundamental rights, such as the right to life, cannot be taken away without the clear authority of law.

Given this issue’s importance, any critical care triage protocol and any legislation that would enact or mandate it should be carefully screened in advance of its enactment by Government’s lawyers to ensure that it is fully lawful and constitutional. The Government has known of the COVID-19 pandemic for over five months. It has had ample time to take these steps. Moreover, The Government has shown that it is prepared to act very swiftly to enact other significant emergency measures to deal with the COVID-19 pandemic. The Government should be capable of doing so in this medical critical care triage context as well.

Any law enacted in this context must fully comply with the Charter of Rights and the Ontario Human Rights Code. Among other things, the standard that it mandates for making a decision over who will be denied life-saving critical care that they medically need must be sufficiently clear and not vague.

3. Right to Early Notice

As part of due process, a patient and their family should be given notice as early as possible in advance that they may be subjected to triage for critical care. This should include a full explanation of such things as what critical care is, what medical triage is, what the steps of the triage process include, what rights the patient has to input into the process, what appeals are available from an adverse triage decision, and whom the patient and their family could consult for assistance in this process. This rights advice and information should be readily available in a wide range of languages.

4. Right to Disability Accommodation in the Triage Process

If a person with disabilities, either a patient or a member of their family/support people, needs an accommodation to enable them to fully participate in this due process, it is important to ensure that their accommodation needs are promptly and fully met. For example, relevant printed material should be readily available in accessible alternate formats. Electronic documents should be provided in an accessible format where needed, such as an accessible html or MS Word document. PDF does not fulfil this need. Sign Language and other communication supports should be available for those needing them to take part in this process. Patients and their families should be told as soon as possible that these accommodations and supports are available on request.

5. Who Should Make the Triage Decision

The triage protocol assumes that this decision over who, among those who need it, should get critical care is a medical decision, and as such, it should automatically be made by physicians. However, that should not be assumed.

It can be argued instead that the decision is not a medical decision, or an exclusively medical decision, even though it relates to medical services. It is a decision over how to ration publicly funded critical medical care in circumstances where there is not enough to go around. It is a decision that should be made by those who are publicly accountable for their decision on how to allocate a scarce life-saving public service or resource.

However, if, despite this serious concern, it were decided to proceed with a medical model for this triage, the following due process is proposed. This due process is proposed without accepting that such a decision should be left at all or exclusively to physicians or other health care professionals.

The hospital team that makes the triage decision should include more than one or two doctors. The Government or Bioethics Table should present a range of options for the Government to consider adopting, listing the advantages and disadvantages of each option, on which public input can be obtained. One option to consider is a committee created by the institution comprised of doctors with expertise in relevant areas such as intensive care or palliative care, nurses, social workers, and ethicists (Sprung, Charles L, et al. Adult ICU Triage During the Coronavirus Disease 2019 Pandemic: Who Will Live and Who Will Die? Recommendations to Improve Survival. US National Library of Medicine National Institutes of Health, NCBI, 6 May 2020).

Sufficient safeguards must be in place and monitored to ensure that the persons on the triage team taking part in the triage assessment and decision have no actual or perceived conflict of interest. For example, they should have no personal relationship with the patient or with any of the other patients who are subject to a triage decision. Those making the decision should have personally met the patient, and not simply been briefed by other members of the triage team.

The members of the team taking part in the triage assessment and decision should be required to have recently completed sufficient designated training in the use of the assessment tool, in the assessment due process requirements, and in applicable human rights principles and the requirement to conduct bias-free and barrier-free assessments that do not discriminate against patients with disabilities. This should not be purely passive online training (where a participant simply reads text or watches lectures and then clicks that they did so).

6. Right to Input Into Triage Decision

As part of the critical care triage assessment process, the patient and their family/support people should be given a full and fair opportunity to give the assessment team information on the patient as it relates to the triage assessment criteria, before any critical care triage decision is made. This should include, among other things, the opportunity to present input from others, such as the patient’s personal physician or other support people.

If a patient that is to be considered for possible critical care triage appears to have no substitute decision-maker on the scene with them, and appears to be incapable of managing their health care decisions, the hospital should immediately notify the Public Guardian and Trustee’s office so that that office can consider taking part in the medical triage process on the patient’s behalf, if needed.

7. Right to Appeal a Denial of Needed Critical Care

If a triage decision is made to refuse critical care to a patient who needs critical care, the senior member of the triage team should tell the patient about the decision and the reasons for it, immediately or as quickly as possible. The patient and their family/support people should be given rights advice about the ways for the patient or their family to appeal or dispute the decision. This rights advice should also be quickly provided to the patient and their family in writing, written in plain language, in documents provided in an accessible format where needed.

Where a patient is denied needed critical care due to a triage decision, that decision should be re-assessed each 24 hours after this denial (Sprung, Charles L, et al. Adult ICU Triage During the Coronavirus Disease 2019 Pandemic: Who Will Live and Who Will Die? Recommendations to Improve Survival. US National Library of Medicine National Institutes of Health, NCBI, 6 May 2020).

If any Ontario emergency orders now suspend due process protections for hospital patients such as opportunities to seek appeals or reviews of refusals of treatment, any such suspension of due process should be lifted. Where a patient who needs critical care is denied it due to a triage decision, the patient and their family should have a right to a swift appeal process within the health care system, with an ultimate option of an appeal to court or an appropriate independent tribunal with the needed expertise and expeditious procedures. This appeal process must be swift due to the fact that the patient needs critical care for a life-threatening condition, and because the health care facility is under incredible work pressure due to the pandemic crisis.

The AODA Alliance has not had the time and capacity to obtain and compare a wide range of hospital appeal protocols. We propose that the appeal process should include these features:

a) Information about the availability of an appeal and how to launch an appeal should be widely available and well publicized, within a hospital.

b) The appeal process must be very fast.

c) The appeal process should rapidly get right to the substantive critical care issues, without being distracted by extraneous considerations. This is needed to minimize the time that the process takes and the need to enable medical staff to spend their time treating patients.

d) A patient or their family/support people should be able to quickly and easily launch an appeal by sending in an email, placing a phone call, or verbally advising a person in charge e.g. a charge nurse in an emergency room. Whoever receives the written or oral notification that the appeal is being launched should be required to immediately communicate it to a central hub at the hospital.

e) To speed up this process, to the extent possible, virtual meetings should be used to conduct the parts of the appeal that do not require in-person contact.

f) On an appeal being launched, a hospital staff person who had no involvement in the triage decision should immediately be assigned to manage the appeal process, and to be the patient/family’s/support people’s primary contact.

g) Immediately upon launching an appeal, an independent person either within the hospital or on stand-by at Ontario Health should review the initial triage team’s documentation of their triage decision. If the documentation reveals any possible errors, the triage team that made the decision should be required to reconsider its decision afresh.

h) If, after that review, the triage team sticks by its decision to deny critical care to the patient, a second triage team, either in the hospital or elsewhere, should be appointed to immediately perform an independent clinical care triage assessment of the patient’s case. The second triage team should have the same required qualifications and training on the triage process as did the first triage team. The second triage team should, of course, include no members from the first triage team.

i) The second triage team should start the assessment from scratch, and should not be provided any of the assessment decision ratings or deliberations of the first triage team. The members of the second triage team should not communicate about this case with members of the first triage team before or while making their assessment.

j) The patient should get the benefit of the most favourable assessment, as between the first and second triage teams. If, after this second team’s assessment, the patient is still denied critical care, they should have an opportunity to have a rapid appeal/review by an independent court or tribunal. New legislation or regulations may be needed to spell this out. We do not have time to specify to whom this appeal should go. One option worth considering is the Consent and Capacity Board (CCB). Another option to consider is a judge of the Superior Court of Justice. A short list of judges from that court could be designated to be on stand-by for cases coming to them, if it is decided that a judge should hear these cases.

k) Whether this final appeal is to a judge or to the CCB or some other body, to expedite this process, a panel of qualified lawyer-mediators should be designated to be on standby to assist that judge or tribunal e.g. to quickly gather, organize and disclose to the parties and the appeal judge or tribunal all the relevant information from the hospital and the two triage teams that had reviewed the case. Because such appeals must happen extremely quickly, it would be important for the patient, family/support people and hospital to have that emergency assistance.

l) To ensure that the playing field is level for all patients, the Government should direct that Legal Aid Ontario is required to provide free legal representation to any patient invoking this appeal process after being denied critical care. A panel of Legal Aid-funded lawyers should be available on stand-by for emergency engagement if needed.

8. Accountability for Triage Decisions

At each stage of the medical triage process, the triage team should be required to keep detailed contemporaneous records of their entire triage process including any triage assessments. These cases should be reported weekly for review by the hospital’s senior management and ethics committee, and should be reported weekly to the Ministry of Health. These should also be made public on a weekly basis as aggregated information that does not disclose patient identities. This is all needed to ensure that hospital administration and the Government are kept up-to-date on how the clinical care triage process is operating on the front lines, so that corrective action can be quickly ordered where needed.

For proper public accountability, during any period when a critical care triage protocol is in effect, the Ministry of Health should make public, on a weekly basis, information on a province-wide, municipality and hospital-by-hospital basis, about cases where critical care has been denied due to triage decisions, such as:

a) the number of cases and related medical decisions;

b) key demographic data such as racialized and disability status; and

c) number of decisions appealed and whether the appeal resulted in a refusal or offer of critical care.

3. What the Government’s Bioethics Table Subsequently Recommended in Its September 11, 2020 Report to the Ford Government

The Government-appointed Bioethics Table included the following in its September 11, 2020 report to the Ford Government:

Where a patient or their substitute decision-maker disagrees with the proposed treatment plan based on the critical care triage assessment the critical care triage team should reiterate and make clear to the patient or their substitute decision-maker that an appeals process exists, and should explain the process for making an appeal. All available supports and accommodations should be made available to the patient and/or their substitute decision-maker.

Due process and procedural fairness require that patients or their substitute decision-makers have an opportunity to appeal individual critical care triage decisions in a major surge. An appeals process should therefore be implemented to hear and adjudicate appeals made by patients or their substitute decision-makers with respect to triage decisions where patients are not prioritized for/admitted to critical care or where life-sustaining measures are proposed to be withdrawn because they are no longer benefitting from critical care resources or no longer meet prioritization criteria due to continued surge in demand. Because the former scenario is more time-sensitive, separate appeals processes may be required in order to facilitate rapid hearing of appeals in these cases.

Appeals have important legal implications, and processes of appeals must be developed such that they work within the multiple contexts of Ontario’s health system. Consequently, we recommend that health system stakeholders be engaged to further develop a plan for appeals. With that said, we believe that elements of this appeals process should include the following:
The appeals process should be clear and easy for a lay person to trigger and conduct.
Patient advocates, including a rights advisor or a member of the patient’s circle of care, should be able to initiate an appeal on behalf of a patient with the patient or their substitute decision-maker’s consent.
The critical care triage team should explain the grounds for the critical care triage assessment decision that was made. They should also consider reassessing the patient at regular intervals.
Appeals should immediately be brought to a Critical Care Triage Appeals Committee that is independent of the critical care triage team and of the patient’s care.
Critical Care Triage Appeals Committees should be established at a regional or provincial, rather than institutional, level. A regional model is capable of enhancing consistency across hospitals, bridges capacity gaps (e.g., small vs. large hospitals), and draws from a larger pool of relevant expertise and perspectives. All Critical Care Triage Appeals Committees should be made up of at least five individuals and include the perspectives of those with expertise in critical care, fair processes, and members of the community. The inclusion of perspectives from Black and other racialized populations, Indigenous populations, and persons with disabilities should exist across all members of Critical Care Triage Appeals Committees. Three Critical Care Triage Appeals Committee members should be required for a quorum to render a decision, using a simple majority vote. The process should proceed by telephone, virtually, or in person, and the outcome should be promptly communicated verbally and in writing to whomever brought the appeal.
The appeals process must occur quickly enough that it does not create any delay in treatment or further harm the patient (in the case of initial triage decisions) or patients who are in the queue for scarce critical care resources currently being used by the patient who is the subject of the appeal (in the case of triage decisions involving the withdrawal of life-sustaining measures).
Periodically, the Critical Care Triage Appeals Committee should retrospectively evaluate whether the review process is consistent with effective, fair, and timely application of the allocation framework.

4. What Is in the January 13, 2021 triage protocol

Note: the January 13, 2021 triage protocol includes no patient appeal from an adverse triage decision that endangers their life. The January 13, 2021 triage protocol makes one reference to due process. It states:

An emergency standard of care should be undergirded by mechanisms of due process that minimize impairment of rights as much as possible. A clear, transparent, accountable system, applied across all patients, hospitals and regions, is the optimal way to support fair and evidence- based decisions, protect human rights and to minimize the risk of discrimination and unconscious bias negatively impacting the care of vulnerable populations (such as people with disabilities, people who are racialized and people with pre-existing health conditions). It is also the best way to minimize moral injury and burnout amongst healthcare professionals and leaders burdened with the responsibility of triage.

In another context, the January 13, 2021 triage protocol emphasizes the importance of procedural fairness. We note that due process is another way of saying procedural fairness. The January 13, 2021 triage protocol states:

In the context of a major surge, there may be occasions where there is little clinical evidence to guide triage decisions (i.e. to distinguish between multiple critically ill patients) on the basis of predicted short term mortality, or there are irreconcilable differences of opinion between physicians regarding a patient’s eligibility for critical care at a particular level.
In such contexts of uncertainty, triage decisions must appeal to procedural fairness.
Randomization offers a procedurally fair process of decision-making that mitigates against the potential of explicit or unconscious bias and demonstrates the value of humility when uncertainty is high. Random selection also has other advantages as a decision-making strategy in the context of an overwhelming surge of critically ill patients:




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The Ford Government’s January 13, 2021 Critical Care Triage Protocol Would Make Every Triage Doctor a Law Unto Themselves, Denying Due Process or Fair Procedure to Patients Whose Lives Are In Jeopardy


Accessibility for Ontarians with Disabilities Act Alliance Update

United for a Barrier-Free Society for All People with Disabilities

Web: www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: www.facebook.com/aodaalliance/

The Ford Government’s January 13, 2021 Critical Care Triage Protocol Would Make Every Triage Doctor a Law Unto Themselves, Denying Due Process or Fair Procedure to Patients Whose Lives Are In Jeopardy

January 26, 2021

            SUMMARY

We are deeply concerned that under the Ford Government’s January 13, 2021 triage protocol each frontline doctor would be a law unto themselves when deciding which patients to refuse life-saving critical care. This would happen if critical care must be rationed because the COVID-19 pandemic overloads Ontario hospitals. On January 18, 2021, we made that secret protocol public and wrote the Ford Government to strongly object to it. Ontario’s NDP has called for it to be rescinded.

In this Update we focus on one powerful and very disturbing illustration of how doctors would wrongly become a law unto themselves. They would too often be able to consciously or unconsciously bring to bear their own personal and subjective preferences when deciding which patients they will deny life-saving critical care. The January 13, 2021 triage protocol which was secretly sent to Ontario hospitals gives no due process or procedural fairness to a patient who needs life-saving critical care, but whom a doctor might refuse critical care.

This protocol would only go into effect if the Government-appointed Ontario Critical Care COVID Command Centre decides that Ontario hospitals have no more room and staff to handle all the patients who need critical care. In that event, the January 13, 2021 triage protocol requires that critical care be rationed or “triaged”. Some patients needing that care will be refused it. It will be doctors who make that life and death decision, according to the January 13, 2021 triage protocol. We believe that doctors do not want to be put in that awful position, and won’t want to be a law unto themselves. However, that is where the Ford Government is now allowing them to be positioned.

Below we explain this due process issue and then set out the “paper trail” that proves beyond doubt that our concerns are fully justified. We alerted Ontario’s Health Minister Christine Elliott of these concerns within days of our getting our hands on the January 13, 2021 triage protocol, writing as follows in the AODA Alliance’s January 18, 2021 letter to the Minister:

“Under this protocol, the patient whose life is at stake is in effect treated as a passive body lying on a gurney, over whom doctors will deliberate, make decisions, and then communicate the good or bad news (offering emotional support if the news is bad). There is no opportunity for the patient or their supporters to have input into the assessment.”

For more background on this issue, check out:

  1. The new January 13, 2021 triage protocol which the AODA Alliance received, and is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.
  1. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.
  1. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.
  1. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.
  1. The AODA Alliance website’s health care web page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

            MORE DETAILS

 1. The Ford Government’s Denial of Due Process to Patients At Risk of Dying Due to a Refusal of Critical Medical Care, If Triage Becomes Necessary

Here is a full explanation of this issue. What do we mean by “due process” or “procedural fairness”? When a decision is going to be made that could harm your basic rights, you should be told about it in advance. You should be told why. You should be given a chance to be heard on the question, to present information that can help you get a decision in your favour. If the decision goes against you, you should have a chance to appeal it.

This due process all helps make the decision a fair one and an accurate one. This due process is especially important when the right at stake is the very right to live. That is the right at stake for a patient needing critical care if there is to be critical care triage.

The January 13, 2021 triage protocol does not give a patient or their family any right to be heard or have input into a decision over critical care triage. It gives them no right of appeal if the doctors decide to refuse them the critical care they need. It requires the doctors to give the triaged patient the bad news and to arrange for them to get some medical care, short of the critical care they need to survive. At most, it only requires doctors to explain at least some of the triage process to the patient at risk.

Making due process even more important here, the January 13, 2021 triage protocol specifically directs doctors to use the Clinical Frailty Scale to assess some patients’ eligibility for critical care, if triage is taking place. Disability community advocates have called for that Scale not to be used, because it flagrantly discriminates based on disability. The Ontario Human Rights Commission has also called for that Scale not to be used. Yet the Ontario Government’s Bioethics Table and Ontario Critical Care COVID Command Centre have ignored that, and pressed ahead with the use of that Scale.

That Clinical Frailty Scale requires a doctor to rate whether the patient can perform a list of activities of daily living without assistance, namely dressing, bathing, eating, walking, getting in and out of bed, using the telephone, going shopping, preparing meals, doing housework, taking medication, or handling their own finances. The Clinical Frailty Scale was not designed to be used to decide who lives and who dies during critical care triage.

Even if the Clinical Frailty Scale were not disability discriminatory, a patient, whose life can depend in part on their score, should have a chance to have a say in whether they can do those activities of daily living. They and their family will know much more about this than an emergency room doctor who has never before met them. The same might also be said for at least some other factors that a doctor decides to use when deciding whether to refuse critical care for a patient who needs it.

An appeal from a decision refusing critical care to a patient who needs it is also an important due process safeguard to help protect patients. It helps ensure that doctors, making triage decisions, are considering the right factors and are not taking into account improper factors. Without an appeal, frontline triage doctors and the administrators who oversee them have no imminent check on their decisions. A lawsuit fought out years later by the patient’s family will come too late to save a life.

The need for proper due process for a patient whose life is at stake is even more pressing, since the head of a Toronto hospital’s Intensive Care Unit, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital, has said that these triage decisions under the January 13, 2021 triage protocol will be difficult, and may well involve the doctor making guesstimates and improvising. He explained that doctors have no experience with making such decisions. He told this to the CBC’s January 23, 2021 edition of White Coat Black Art. We included Dr. Warner’s quotations in the January 25, 2021 AODA Alliance Update.

How can all this due process be done in the context of an overloaded hospital system in the middle of a raging pandemic? The Ford Government-appointed Bioethics Table asked us that very question last summer. After extensive research, we put forward practical and constructive recommendations designed for that very context fully five months ago. We set them out below.

This package of due process protections is not included in the January 13, 2021 triage protocol with the exception of a patient being told about at least some of the triage process to which they may be subjected. There has been no explanation by the Ford Government or its Ontario Critical Care COVID Command Centre (which approved the January 13, 2021 triage protocol) or by the advisory Bioethics Table of why these important due process protections have been left out.

There is no reason given for this denial of due process especially when the January 13, 2021 triage protocol lists procedural fairness as a feature that a critical care triage protocol should include. The Government and its Ontario Critical Care COVID Command Centre and Bioethics Table have held no public discussions of this due process issue. These decisions are all being made behind closed doors, by unidentified people. This is not the openness, transparency and public accountability that the Ford Government promised Ontarians. It certainly does not protect the most vulnerable, which Ontarians were promised by Premier Ford.

The January 13, 2021 triage protocol was evidently written by doctors. The Government claims that it was written by experts for experts. Yet the medical profession, which plays a vital role during this pandemic, has no training in or expertise in due process, human rights, or fundamental constitutional rights. There is something very wrong with this picture.

We here again make public the paper trail that shows this palpable failure by the Ford Government and those to whom it has delegated responsibility to handle this issue behind closed doors. We set out key parts of that paper trail below. There is no doubt more secret documentation on point in the hands of the Government and its Bioethics Table and Ontario Critical Care COVID Command Centre:

  1. Last summer, the Bioethics Table shared with the AODA Alliance and some other disability advocates an earlier revised draft of a triage protocol, one which precedes its later September 11, 2020 recommendations. We posted that draft protocol online on July 16, 2020. We know it is hard to keep all these drafts straight.

That earlier draft triage protocol included no due process for patients whatsoever. Under it, the patient and their family had no right to be heard by those deciding the patient’s fate. There was no assurance that the family can get their family doctor to chime in and add their voice to the discussion. There was no right of appeal to anyone else in the hospital.

There was no duty on the doctors or hospitals to give the patient or their family basic rights advice. This was so even though the revised draft medical triage protocol gives superficial and inadequate lip service to due process concerns, stating:

“Due process considerations (e.g., transparency about reasons for triage decisions) are especially important in this context. Hospitals should plan for how they might proactively prepare patients and families for possible outcomes of the triage process as well as how they would respond transparently and compassionately to patient or family concerns should these arise.”

Appendix E to that earlier revised draft protocol sets out a sample of what a doctor might tell a patient and their family if it has been decided to refuse them a needed ventilator due to a ventilator shortage. That seriously deficient text gave the patient and family no rights advice or other basic information of what they can do if they wish to dispute the decision and to have it reconsidered.

That earlier draft Medical triage protocol in substance wrongly and summarily rejected the idea of any appeal, stating:

“critically ill patients must be assessed rapidly in a dynamic and over-taxed environment, a formal process for patients and families to appeal triage decisions may not be feasible or appropriate (e.g., if critical care is contrary to the patient’s wishes).”

  1. During our summer virtual meetings with the Government’s Bioethics Table, we were asked to give ideas on what kinds of due process should be included in the triage protocol, that are sensitive to the time pressures during such triage. We did so in our August 30, 2020 written submission to the Bioethics Table. We set the relevant part of those submissions out below. They were posted on line last summer, and shared with the Ford Government and not just its Bioethics Table.
  1. After that, the Bioethics Table included some, but not all of our due process recommendations in its September 11, 2020 report to the Ford Government. The Government kept that report secret for three months, forcing us to vigourously advocate for its public release. We set out the relevant parts of that report below that address due process for patients.
  1. On November 13, 2020, the Government or its Ontario Critical Care COVID Command Centre sent a secret new draft triage protocol to Ontario hospitals. We have not seen it. However, we know from a later undated letter from Dr. Andrew Baker, a member of the Ontario Critical Care COVID Command Centre, to Ontario hospitals that that draft protocol included some sort of right of appeal within the health care system for triage patients who are refused critical care they need. That letter listed the following as some of the things that have been removed from the draft protocol that was earlier circulated to hospitals on November 13, 2020:

“1. Removal of the requirement of a triage team that makes ICU bed allocation decisions; 2. Removal of reference to an external appeals committee;”

  1. We have learned that the Bioethics Table later delivered a secret revised report to the Government on critical care triage on January 12, 2021. We do not know what it said about due process for patients or anything else.
  1. Next, the January 13, 2021 triage protocol was secretly sent to all hospitals by or on behalf of the Ford Government. It did not include the package of due process rights for patients facing critical care triage that we have asked for and that the Bioethics Table earlier recommended in its September 11, 2020 report, except for advising patients about at least some of the triage process that the January 13, 2021 triage protocol mandates (one in which the patient has no say). We do not know who decided to rip out further due process from the protocol, or who they consulted, or why they decided to do this.

 2. What the AODA Alliance Told the Government-Appointed External and Advisory Bioethics Table on August 30, 2020

The AODA Alliance’s August 30, 2020 written submissions to the Government’s Bioethics Table included:

The First Issue: The Revised Draft Triage Protocol is Seriously Lacking in Due Process for All Patients

  1. The Bottom Line

The critical medical triage protocol needs to be revised to provide strong, mandatory, reliable due process protections that ensure fair and accurate decisions in triage cases. This is especially important since the decision of whether a patient will be given critical care is a life and death decision. The Canadian Charter of Rights and Freedoms guarantees in section 7 the right to life, and the right not to be deprived of one’s life except in accordance with the principles of fundamental justice. Due process must be the most rigourous when the right to life is at stake.

  1. The Rule of Law and the Need for Any Triage Protocol to Be Enacted in Law

As a vital starting point, any critical care triage protocol, including the due process safeguards in it, should be enacted in a law. Such a protocol is specifically aimed at a situation where a patient could be denied critical medical care that they need, despite the fact that they need it. It is a basic aspect of the rule of law that a person’s fundamental rights, such as the right to life, cannot be taken away without the clear authority of law.

Given this issue’s importance, any critical care triage protocol and any legislation that would enact or mandate it should be carefully screened in advance of its enactment by Government’s lawyers to ensure that it is fully lawful and constitutional. The Government has known of the COVID-19 pandemic for over five months. It has had ample time to take these steps. Moreover, The Government has shown that it is prepared to act very swiftly to enact other significant emergency measures to deal with the COVID-19 pandemic. The Government should be capable of doing so in this medical critical care triage context as well.

Any law enacted in this context must fully comply with the Charter of Rights and the Ontario Human Rights Code. Among other things, the standard that it mandates for making a decision over who will be denied life-saving critical care that they medically need must be sufficiently clear and not vague.

  1. Right to Early Notice

As part of due process, a patient and their family should be given notice as early as possible in advance that they may be subjected to triage for critical care. This should include a full explanation of such things as what critical care is, what medical triage is, what the steps of the triage process include, what rights the patient has to input into the process, what appeals are available from an adverse triage decision, and whom the patient and their family could consult for assistance in this process. This rights advice and information should be readily available in a wide range of languages.

  1. Right to Disability Accommodation in the Triage Process

If a person with disabilities, either a patient or a member of their family/support people, needs an accommodation to enable them to fully participate in this due process, it is important to ensure that their accommodation needs are promptly and fully met. For example, relevant printed material should be readily available in accessible alternate formats. Electronic documents should be provided in an accessible format where needed, such as an accessible html or MS Word document. PDF does not fulfil this need. Sign Language and other communication supports should be available for those needing them to take part in this process. Patients and their families should be told as soon as possible that these accommodations and supports are available on request.

  1. Who Should Make the Triage Decision

The triage protocol assumes that this decision over who, among those who need it, should get critical care is a medical decision, and as such, it should automatically be made by physicians. However, that should not be assumed.

It can be argued instead that the decision is not a medical decision, or an exclusively medical decision, even though it relates to medical services. It is a decision over how to ration publicly funded critical medical care in circumstances where there is not enough to go around. It is a decision that should be made by those who are publicly accountable for their decision on how to allocate a scarce life-saving public service or resource.

However, if, despite this serious concern, it were decided to proceed with a medical model for this triage, the following due process is proposed. This due process is proposed without accepting that such a decision should be left at all or exclusively to physicians or other health care professionals.

The hospital team that makes the triage decision should include more than one or two doctors. The Government or Bioethics Table should present a range of options for the Government to consider adopting, listing the advantages and disadvantages of each option, on which public input can be obtained. One option to consider is a committee created by the institution comprised of doctors with expertise in relevant areas such as intensive care or palliative care, nurses, social workers, and ethicists (Sprung, Charles L, et al. “Adult ICU Triage During the Coronavirus Disease 2019 Pandemic: Who Will Live and Who Will Die? Recommendations to Improve Survival.” US National Library of Medicine National Institutes of Health, NCBI, 6 May 2020).

Sufficient safeguards must be in place and monitored to ensure that the persons on the triage team taking part in the triage assessment and decision have no actual or perceived conflict of interest. For example, they should have no personal relationship with the patient or with any of the other patients who are subject to a triage decision. Those making the decision should have personally met the patient, and not simply been briefed by other members of the triage team.

The members of the team taking part in the triage assessment and decision should be required to have recently completed sufficient designated training in the use of the assessment tool, in the assessment due process requirements, and in applicable human rights principles and the requirement to conduct bias-free and barrier-free assessments that do not discriminate against patients with disabilities. This should not be purely passive online training (where a participant simply reads text or watches lectures and then clicks that they did so).

  1. Right to Input Into Triage Decision

As part of the critical care triage assessment process, the patient and their family/support people should be given a full and fair opportunity to give the assessment team information on the patient as it relates to the triage assessment criteria, before any critical care triage decision is made. This should include, among other things, the opportunity to present input from others, such as the patient’s personal physician or other support people.

If a patient that is to be considered for possible critical care triage appears to have no substitute decision-maker on the scene with them, and appears to be incapable of managing their health care decisions, the hospital should immediately notify the Public Guardian and Trustee’s office so that that office can consider taking part in the medical triage process on the patient’s behalf, if needed.

  1. Right to Appeal a Denial of Needed Critical Care

If a triage decision is made to refuse critical care to a patient who needs critical care, the senior member of the triage team should tell the patient about the decision and the reasons for it, immediately or as quickly as possible. The patient and their family/support people should be given “rights advice” about the ways for the patient or their family to appeal or dispute the decision. This “rights advice” should also be quickly provided to the patient and their family in writing, written in plain language, in documents provided in an accessible format where needed.

Where a patient is denied needed critical care due to a triage decision, that decision should be re-assessed each 24 hours after this denial (Sprung, Charles L, et al. “Adult ICU Triage During the Coronavirus Disease 2019 Pandemic: Who Will Live and Who Will Die? Recommendations to Improve Survival.” US National Library of Medicine National Institutes of Health, NCBI, 6 May 2020).

If any Ontario emergency orders now suspend due process protections for hospital patients such as opportunities to seek appeals or reviews of refusals of treatment, any such suspension of due process should be lifted. Where a patient who needs critical care is denied it due to a triage decision, the patient and their family should have a right to a swift appeal process within the health care system, with an ultimate option of an appeal to court or an appropriate independent tribunal with the needed expertise and expeditious procedures. This appeal process must be swift due to the fact that the patient needs critical care for a life-threatening condition, and because the health care facility is under incredible work pressure due to the pandemic crisis.

The AODA Alliance has not had the time and capacity to obtain and compare a wide range of hospital appeal protocols. We propose that the appeal process should include these features:

  1. a) Information about the availability of an appeal and how to launch an appeal should be widely available and well publicized, within a hospital.
  1. b) The appeal process must be very fast.
  1. c) The appeal process should rapidly get right to the substantive critical care issues, without being distracted by extraneous considerations. This is needed to minimize the time that the process takes and the need to enable medical staff to spend their time treating patients.
  1. d) A patient or their family/support people should be able to quickly and easily launch an appeal by sending in an email, placing a phone call, or verbally advising a person in charge e.g. a charge nurse in an emergency room. Whoever receives the written or oral notification that the appeal is being launched should be required to immediately communicate it to a central hub at the hospital.
  1. e) To speed up this process, to the extent possible, virtual meetings should be used to conduct the parts of the appeal that do not require in-person contact.
  1. f) On an appeal being launched, a hospital staff person who had no involvement in the triage decision should immediately be assigned to manage the appeal process, and to be the patient/family’s/support people’s primary contact.
  1. g) Immediately upon launching an appeal, an independent person either within the hospital or on stand-by at Ontario Health should review the initial triage team’s documentation of their triage decision. If the documentation reveals any possible errors, the triage team that made the decision should be required to reconsider its decision afresh.
  1. h) If, after that review, the triage team sticks by its decision to deny critical care to the patient, a second triage team, either in the hospital or elsewhere, should be appointed to immediately perform an independent clinical care triage assessment of the patient’s case. The second triage team should have the same required qualifications and training on the triage process as did the first triage team. The second triage team should, of course, include no members from the first triage team.
  1. i) The second triage team should start the assessment from scratch, and should not be provided any of the assessment decision ratings or deliberations of the first triage team. The members of the second triage team should not communicate about this case with members of the first triage team before or while making their assessment.
  1. j) The patient should get the benefit of the most favourable assessment, as between the first and second triage teams. If, after this second team’s assessment, the patient is still denied critical care, they should have an opportunity to have a rapid appeal/review by an independent court or tribunal. New legislation or regulations may be needed to spell this out. We do not have time to specify to whom this appeal should go. One option worth considering is the Consent and Capacity Board (CCB). Another option to consider is a judge of the Superior Court of Justice. A short list of judges from that court could be designated to be on stand-by for cases coming to them, if it is decided that a judge should hear these cases.
  1. k) Whether this final appeal is to a judge or to the CCB or some other body, to expedite this process, a panel of qualified lawyer-mediators should be designated to be on standby to assist that judge or tribunal e.g. to quickly gather, organize and disclose to the parties and the appeal judge or tribunal all the relevant information from the hospital and the two triage teams that had reviewed the case. Because such appeals must happen extremely quickly, it would be important for the patient, family/support people and hospital to have that emergency assistance.
  1. l) To ensure that the playing field is level for all patients, the Government should direct that Legal Aid Ontario is required to provide free legal representation to any patient invoking this appeal process after being denied critical care. A panel of Legal Aid-funded lawyers should be available on stand-by for emergency engagement if needed.
  1. Accountability for Triage Decisions

At each stage of the medical triage process, the triage team should be required to keep detailed contemporaneous records of their entire triage process including any triage assessments. These cases should be reported weekly for review by the hospital’s senior management and ethics committee, and should be reported weekly to the Ministry of Health. These should also be made public on a weekly basis as aggregated information that does not disclose patient identities. This is all needed to ensure that hospital administration and the Government are kept up-to-date on how the clinical care triage process is operating on the front lines, so that corrective action can be quickly ordered where needed.

For proper public accountability, during any period when a critical care triage protocol is in effect, the Ministry of Health should make public, on a weekly basis, information on a province-wide, municipality and hospital-by-hospital basis, about cases where critical care has been denied due to triage decisions, such as:

  1. a) the number of cases and related medical decisions;
  1. b) key demographic data such as racialized and disability status; and
  1. c) number of decisions appealed and whether the appeal resulted in a refusal or offer of critical care.

 3. What the Government’s Bioethics Table Subsequently Recommended in Its September 11, 2020 Report to the Ford Government

The Government-appointed Bioethics Table included the following in its September 11, 2020 report to the Ford Government:

Where a patient or their substitute decision-maker disagrees with the proposed treatment plan based on the critical care triage assessment the critical care triage team should reiterate and make clear to the patient or their substitute decision-maker that an appeals process exists, and should explain the process for making an appeal. All available supports and accommodations should be made available to the patient and/or their substitute decision-maker.

Due process and procedural fairness require that patients or their substitute decision-makers have an opportunity to appeal individual critical care triage decisions in a major surge. An appeals process should therefore be implemented to hear and adjudicate appeals made by patients or their substitute decision-makers with respect to triage decisions where patients are not prioritized for/admitted to critical care or where life-sustaining measures are proposed to be withdrawn because they are no longer benefitting from critical care resources or no longer meet prioritization criteria due to continued surge in demand. Because the former scenario is more time-sensitive, separate appeals processes may be required in order to facilitate rapid hearing of appeals in these cases.

Appeals have important legal implications, and processes of appeals must be developed such that they work within the multiple contexts of Ontario’s health system. Consequently, we recommend that health system stakeholders be engaged to further develop a plan for appeals. With that said, we believe that elements of this appeals process should include the following:

  • The appeals process should be clear and easy for a lay person to trigger and conduct.
  • Patient advocates, including a rights advisor or a member of the patient’s circle of care, should be able to initiate an appeal on behalf of a patient with the patient or their substitute decision-maker’s consent.
  • The critical care triage team should explain the grounds for the critical care triage assessment decision that was made. They should also consider reassessing the patient at regular intervals.
  • Appeals should immediately be brought to a Critical Care Triage Appeals Committee that is independent of the critical care triage team and of the patient’s care.
  • Critical Care Triage Appeals Committees should be established at a regional or provincial, rather than institutional, level. A regional model is capable of enhancing consistency across hospitals, bridges capacity gaps (e.g., small vs. large hospitals), and draws from a larger pool of relevant expertise and perspectives. All Critical Care Triage Appeals Committees should be made up of at least five individuals and include the perspectives of those with expertise in critical care, fair processes, and members of the community. The inclusion of perspectives from Black and other racialized populations, Indigenous populations, and persons with disabilities should exist across all members of Critical Care Triage Appeals Committees. Three Critical Care Triage Appeals Committee members should be required for a quorum to render a decision, using a simple majority vote. The process should proceed by telephone, virtually, or in person, and the outcome should be promptly communicated verbally and in writing to whomever brought the appeal.
  • The appeals process must occur quickly enough that it does not create any delay in treatment or further harm the patient (in the case of initial triage decisions) or patients who are in the queue for scarce critical care resources currently being used by the patient who is the subject of the appeal (in the case of triage decisions involving the withdrawal of life-sustaining measures).
  • Periodically, the Critical Care Triage Appeals Committee should retrospectively evaluate whether the review process is consistent with effective, fair, and timely application of the allocation framework.

 4. What Is in the January 13, 2021 triage protocol

Note: the January 13, 2021 triage protocol includes no patient appeal from an adverse triage decision that endangers their life. The January 13, 2021 triage protocol makes one reference to due process. It states:

“An emergency standard of care should be undergirded by mechanisms of due process that minimize impairment of rights as much as possible. A clear, transparent, accountable system, applied across all patients, hospitals and regions, is the optimal way to support fair and evidence- based decisions, protect human rights and to minimize the risk of discrimination and unconscious bias negatively impacting the care of vulnerable populations (such as people with disabilities, people who are racialized and people with pre-existing health conditions). It is also the best way to minimize moral injury and burnout amongst healthcare professionals and leaders burdened with the responsibility of triage.”

In another context, the January 13, 2021 triage protocol emphasizes the importance of procedural fairness. We note that due process is another way of saying procedural fairness. The January 13, 2021 triage protocol states:

“In the context of a major surge, there may be occasions where there is little clinical evidence to guide triage decisions (i.e. to distinguish between multiple critically ill patients) on the basis of predicted short term mortality, or there are irreconcilable differences of opinion between physicians regarding a patient’s eligibility for critical care at a particular level.

In such contexts of uncertainty, triage decisions must appeal to procedural fairness.

Randomization offers a procedurally fair process of decision-making that mitigates against the potential of explicit or unconscious bias and demonstrates the value of humility when uncertainty is high. Random selection also has other advantages as a decision-making strategy in the context of an overwhelming surge of critically ill patients:”



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CBC Program Reveals Disturbing Fact that, Far From Objective Scientific Decisions, Ontario Critical Care Triage Could Involve Doctors Guesstimating and Improvising When Deciding Which Patients Should be Refused Life-Saving Critical Medical Care They Need


And Other News on The Triage Issue

Accessibility for Ontarians with Disabilities Act Alliance Update United for a Barrier-Free Society for All People with Disabilities
Web: https://www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance Facebook: https://www.facebook.com/aodaalliance/

January 25, 2021

SUMMARY

The controversy keeps swirling around the Doug Ford Government’s secretive handling of the life-and-death question of who will be refused life-saving critical medical care if those services must be triaged or rationed, and the danger of disability discrimination, because the Government did not ensure sufficient hospital services for all who need them. Here are the three newest developments on this front.

1. The Friday, January 22, 2021 edition of CBC Radio’s health program, White Coat Black Art was devoted to the topic of how decisions will be made over who lives and who dies if the COVID-19 pandemic leads hospitals to have to ration or triage life-saving critical medical care. In his introduction, typically written after interviews were recorded, Dr. Goldman described how hospital case loads are growing, and stated:

Last week, hospitals in Ontario were given ICU (i.e. Intensive Care Unit) triage protocols from the Ministry of Health. A similar document was given to hospitals in Quebec earlier this month. These documents, which are backed by science, tell doctors how likely patients are to live or die, if they are admitted to the ICU.

Yet there is ample room from our own investigations and from Dr. Goldman’s interview that followed to question how much the Ontario triage protocol is backed by science, as opposed to a dangerous mirage of science that disguises the palpable danger of disability discrimination. Far from objective science, this program shows that triage decisions over who lives and who dies can be potentially expected to include doctors guestimating and improvising. Doctors and medicine do not have provably objective and reliable tools for predicting whether a critical care patient is likely to live beyond the next year.

This is proven by Dr. Goldman’s first guest on his program, Dr. Michael Warner, the Medical Director of Critical Care at Toronto’s Michael Garron Hospital. Describing how the January 13, 2021 triage protocol would work, he stated in part:

What’s different now is we have to essentially guesstimate what would happen a year from now. He explained that this is not how treatment decisions are now made, and that doing this would be very difficult to do because doctors will be very busy caring for patients, and not all patients will have this protocol. This head of a Toronto hospital’s ICU said candidly that he is not sure how they would action this in real life because it’s a policy on paper

Dr. Goldman asked Dr. Warner how confident he is that emergency doctors can use these new rules accurate in a chaotic and stressful environment like an emergency room. Dr. Warner responded in part:

so it’s hard to know how we would be able to effectively use a tool that’s written on a piece of paper, where two doctors have to verify someone’s mortality risk and then decide on what to do, if there are patients everywhere, you know, potentially dying. You know, I think we need something written down on paper, so that all these stakeholders can review it and provide their input, but at the end of the day, if we ever have to use it, we may have to improvise..

It is very good that this program addressed this topic. However, this program’s content was utterly lacking in desperately-needed and fundamental journalistic balance. The program’s host, Dr. Brian Goldman, only interviewed doctors, but no one from the disability community who have been raising serious concerns about disability discrimination.

That flew in the face of the program’s weekly opening line, which proclaims Welcome to White Coat Black Art, the show about medicine from all sides of the gurney. Contrary to its stated prime directive, this edition of that program took a selective look at this important issue from only one side of the gurney, that of the doctors. We have been reaching out to Dr. Goldman for months to cover the disability discrimination concerns with Ontario’s critical care triage protocol. The need for such was even flagged for the program by one of its two guests, Dr. Warner. In the only brief reference to disability perspectives on this entire program, Dr. Warner commendably stated on his own initiative:

I think that disability and other advocates should definitely educate us on how this policy may not meet the needs of all patients so that it could be fair and equitable

CBC knows well about disability community advocacy on the triage issue. This is even more troubling given the difficulty we and the disability community have had for months in getting the media to cover this issue, which has been looming throughout the pandemic.

2. Today, Ontario’s New Democratic Party commendably made public a letter sent by NDP Leader Andrea Horwath and NDP Disabilities Critic Joel Harden to Ontario Health Minister Christine Elliott. Set out below, that letter asks the Government to answer vital questions on this life-and-death issue which the Government has not answered to date. We thank the NDP for publicly asking these questions, and for endorsing the concerns on this issue that the AODA Alliance has been raising from the perspective of people with disabilities. We urge the Ford Government to end its protracted secrecy on this topic, and provide full and prompt answers.

3. The January 23, 2021 edition of the National Post included an extensive article on this issue, also below. It quoted AODA Alliance Chair David Lepofsky on some of our many concerns with the Government’s January 13, 2021 triage protocol.
We spelled those concerns out in the AODA Alliance’s January 18, 2021 letter to Health Minister Christine Elliott within days of receiving a leaked copy of that previously secret critical care triage protocol.

There have now been 725 days, or over 23 months, since the Ford Government received the ground-breaking final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. The Government has announced no comprehensive plan of new action to implement that report. That makes still worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, that we have been trying to address over the past eleven months.

For more background on this issue, check out:

1. The new January 13, 2021 triage protocol which the AODA Alliance received, is now making public, and has asked the Ford Government to verify. We have only acquired this in PDF format, which lacks proper accessibility. We gather some others in the community now have this document as well.

2. The AODA Alliance’s January 18, 2021 news release on the January 13, 2021 triage protocol.

3. The panel on critical care triage, including AODA Alliance Chair David Lepofsky, on the January 13, 2021 edition of TVO’s The Agenda with Steve Paikin.

4. The Government’s earlier external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed last month.

5. The AODA Alliance website’s health care web page, detailing its efforts to tear down barriers in the health care system facing patients with disabilities, and our COVID-19 page, detailing our efforts to address the needs of people with disabilities during the COVID-19 crisis.

MORE DETAILS

January 22, 2021 Letter to Ontario Health Minister from Ontario New Democratic Party

Ministry of Health
5th Floor
777 Bay St.
Toronto, ON M7A 2J3

January 22, 2021

Dear Minister Elliott,

We are writing to you regarding the critical care triage protocol for Ontario hospitals in case of a major COVID-19 surge. With the latest modelling showing that ICUs may be full by early February, the prospect that doctors will have to make life and death decisions about who receives critical care and who doesn’t is not just hypothetical, it could become a reality.

On January 18, we obtained and made public a document dated January 13 written by the COVID-19 Critical Care Command Centre and issued to hospitals. It provides guidance on how hospitals should triage ICU patients in the awful event that emergency rooms are overwhelmed by COVID cases.

Disability rights organizations, including the AODA Alliance, have raised important concerns with the document. Firstly, that it was drafted in secret without the government consulting directly with disability organizations. Second, that it opens the door to discrimination on the basis of disability in the allocation of life-saving care. Finally, it does not offer patients a right of appeal outside the healthcare system, either to an independent tribunal or a court.

Instead of addressing these substantive concerns, we were puzzled by a Ministry of Health spokesperson distancing your government from the document altogether. The Ministry maintains that it is not a triage protocol, despite the fact that it lays out how hospitals should triage critical care patients. Your spokesperson also claimed that the document was not approved or endorsed by the Ministry of Health, even though it was authored by the Critical Care Command Centre your government created.

To this end, we would like you to answer the following questions: Your government says it has not approved the January 13 triage protocol, but it is in doctors’ hands right now. Will you rein in any bodies claiming to instruct hospitals on triage, and revoke the January 13 protocol?

The National Post has reported that the government’s Bioethics Table recommended temporarily suspending the law which requires patient or family consent before life-sustaining treatment is withdrawn from a critical care patient. Is your government considering this and if so, will you immediately publicize any regulations or legislation under consideration for public discussion about this life and death matter?

The Premier promised complete transparency at the start of this pandemic but Minster, your government’s approach to clinical triage has been anything but transparent. The public has a right to know what hospitals are being told to do in the event of a major COVID surge, who is telling them to do so, and to be consulted so that any protocol respects the human rights of all Ontarians, particularly those with disabilities.

We look forward to your response.

Sincerely,

Andrea Horwath Joel Harden
Leader of the Official Opposition MPP, Ottawa Centre

National Post January 23, 2021

A plan of last resort: Choosing who lives and dies if ICUs are overrun; Random selection
Graphic: Nathan Denette, The Canadian Press / If hospitals become overwhelmed, doctors will be asked to make impossible decisions that in normal times would be anathema to their training.

It’s not quite drawing names from a hat.

But if COVID-19 pushes hospitals to crisis levels, Ontario hospitals have been instructed that, when faced with tiebreaking situations –
one empty bed in the ICU, and two, four or more critically sick people with more or less equal chances of surviving competing for it – random selection should be applied.

Each person would be assigned a number. The administrator on call would enter the numbers in a random number generator like random.org, and then click the “generate” button.

“Randomization is efficient when decisions need to be made rapidly,” reads a critical care rationing plan prepared for Ontario hospitals designed to help doctors decide who should get access to beds, intensive care or ventilators in the event of a catastrophic COVID-19 surge. Randomization avoids power struggles between doctors, the document continues. It eliminates explicit or unconscious bias and, critically, reduces the moral and psychological burden of deciding whom, ultimately, wins the bed. Who gets a chance at living.

It may sound dystopian and dehumanized. But far worse than a random number generator would be a human being having to choose, said Dr. Judy Illes, a professor of neurology at the University of British Columbia. “Because the people who have to administer those decisions are hugely at risk for moral distress and trauma.”

Doctors in Canada have never faced critical care rationing. There is no historical precedent. If hospitals become overwhelmed, doctors will be asked to make impossible decisions that in normal times would be anathema to their training.

And while thousands of people aren’t getting the timely care they need – knee surgeries, hip replacements, the start of new experimental drug regimes, because of backlogs when hospitals shut down to all but urgent care – most people in Canada have never had to worry about getting rationed for life-saving care.

Critical care triage protocols, like those now being distributed to Ontario and Quebec hospitals, are formed from lessons learned in battle fields and natural disasters. “But it will be no less heart-wrenching in this situation, and maybe even more so,” because the decisions will be taken in urban hospitals, Illes said, not in fields with grenades going off.

“It’s not a question of will the public cooperate? The public will have no choice,” said Illes, who warns that our autonomy will be eroded if we don’t take better control of the situation.

Nothing is fair about COVID-19, Illes and UBC political science professor Max Cameron wrote in April, and now, nine months out, aggressive mutations are spreading. Hospitalizations and deaths are increasing. An average of 878 people were being treated in ICUs each day during the past seven days. Healthcare workers are frightened, anxious, exhausted. Social distancing is slipping, Peter Loewen reported this week in Public Policy Forum; and most Canadians won’t be vaccinated until the end of September. Ten months into the pandemic, “and there are 10 months to go,” wrote Loewen, a political science professor at the University of Toronto. “This is halftime.”

Meanwhile, Ontario surpassed 250,000 confirmed infections, Quebec a breath away from the same grim mark, and while Quebec’s health ministry told the National Post Friday the province is still a long way from triggering its ICU prioritization protocol, doctors are nervously looking at the U.K, where a new variant is turning some hospitals into “war zones.”

“We want to avoid being patients,” Illes said. “We want to exercise our autonomy to help everyone get through this viral war that we’re in and that we’re not winning right now.”

If people don’t double down on distancing and masking and other precautions, choice will no longer be relevant, she said. “Procedures will take over; protocols will supersede choice. And the focus will be on this public-centred approach, maximizing the most good for the most number of people.”

The Ontario ICU triage protocol, used as a model for triage protocols adopted in Quebec, prioritizes those with the greatest likelihood of survival. (It applies to adults only, not children). People who have a high likelihood of dying within 12 months of the onset of their critical illness would be assigned lower priority for critical care. Doctors would score each person on a “short-term mortality risk assessment,” and across a whole range of different conditions – cancer, heart failure, organ failure, trauma, stroke or severe COVID-19 – ideally before they are intubated, connected to a ventilator. It aims to reduce “preventable deaths to the degree possible” under major surge conditions, with the “least infringement of human rights.” Consultant doctors would be available 24/7 to provide a timely (within the hour) estimate of a person’s survival, “recognizing that such estimates may not be perfect,” but likely more accurate than non-expert judgment. In the final “summary and care plan,” one of two boxes would be checked: the patient will, or will not be offered critical care. Those who don’t meet “prioritization criteria” won’t be abandoned. They’ll receive appropriate medical therapy and/or comfort care.

Most controversially is what is not included in the current plan – a recommendation before the Ontario government that life-support be withdrawn from people already in the ICU whose chances of survival are low, if someone with better prospects is waiting behind them.

The Post reported this week that Ontario Premier Doug Ford’s government is being asked by its external advisory COVID-19 Bioethics Table to pass an “executive order” that would permit doctors, without the consent of patients or families, to remove breathing tubes, switch off ventilators and withdraw other life-saving care from people who are deteriorating, and where further treatment seems futile, so that someone who otherwise might live can take their place.

Withdrawing treatment from someone who hasn’t consented to it could be argued to be culpable homicide, said disability rights advocate David Lepofsky. “There are huge legal questions here, and they need to be discussed in the open, because we’re talking about possibly taking an active action that could accelerate someone’s death,” he said.

“The government can’t decide on who lives and who dies by a memo, written in secret, with no debate in the legislature.”

Under normal conditions, withdrawing treatment without consent would be an “illegitimate choice,” Annette Dufner, of the University of Bonn, wrote in the journal Bioethics. Even in a pandemic, doctors might risk legal charges.

“At the same time, it is by no mean obvious that patients already under treatment in a setting of scarcity have the same moral claim on the respective medical resources they would normally have,” Dufner wrote. When scarce, “the use of resources can, after all, come at the cost of other patients’ lives.”

Any suspension of the consent act would be temporary, said Dr. James Downar, a member of Ontario’s Bioethics Table “And, to be super clear: if there are enough resources for everybody, this never happens.”

Outside the horror of having to choose, even the practicalities of deciding who gets an ICU bed and who should be “discharged” – the dispassionate euphemism for stopping intensive care – “these kinds of equitable, distributive justice kinds of decisions are very, very complicated,” said Dr. Peter Goldberg, head of critical care at Montreal’s McGill University Health Centre.

And how will patients, and families, be told that, “by virtue of this decree” you will, or will not, receive life-saving care? “I don’t know how it’s going to be done,” Goldberg said. “No one has ever done this.”

“Families will presumably have heard about this, from the press. But they may not. They may think this is science fiction. They may go to the courts, and I don’t know what the courts are even going to say in this case.”

Goldberg has never had to take community needs, values or resources into consideration when caring for the critically ill. “Never. Zero. When I have discussions with patients and families, my perspective is always deontological,” what’s best for the person lying in that hospital bed. That “duty to the patient” is now being supplanted by a utilitarian view that says we need to rescue the most lives, he said.

“I understand it, intellectually. But from a physician point of view that I was taught all these years, and from my own personal perspective, it’s just anathema.”

He takes comfort that admissions to his hospitals are coming down. He’s hoping it’s a trend. “The kids went back to school in Quebec yesterday, the high schoolers. The epidemiologists are telling us we may see a blip in 10 days or two weeks if schools really are a reservoir.”

“We’re waiting. We’re not putting our cards away. But we can’t get far enough away from this.”

Triage protocols, medically-guided protocols that are blind to disability, socio-economic status, cultural origin, are the only way to manage and mitigate the moral distress facing the people who will have to enact them, Illes said. “At the end of the day, it is physicians on the front line in the ICU with blood flowing on the floor who will bear the burden of decision-making.”

“How do we protect families from moral distress? I don’t know. No protocol is going to help anyone to understand that the people who cared for their loved person weren’t able to take the last-mile possible saving procedure,” she said.

“Let’s try to avoid ever going there.”

National Post

Sharon Kirkey




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