The British Columbia Government Commits to Provincial Accessibility Legislation and Seeks Public Input on A Proposed Framework for a BC Disabilities Act – Read the AODA Alliance’s Submission to the BC Government


Accessibility for Ontarians with Disabilities Act Alliance Update

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

www.aodaalliance.org [email protected] Twitter: @aodaalliance

The British Columbia Government Commits to Provincial Accessibility Legislation and Seeks Public Input on A Proposed Framework for a BC Disabilities Act – Read the AODA Alliance’s Submission to the BC Government

October 1, 2019

          SUMMARY

The grassroots movement for enacting comprehensive disability accessibility legislation has spread to British Columbia and is making important progress. The BC Government has committed to bring forward a provincial accessibility law, and is now seeking public input on a proposed Framework for this legislation. Below we set out the input that the AODA Alliance has just submitted to the BC Government based on our experience in Ontario and on the federal scene. The Framework for the BC legislation, which the BC Government has posted for public comment, is permanently available on the AODA Alliance website as well at https://www.aodaalliance.org/wp-content/uploads/2019/09/BC-Framework-for-Accessibility-Legislation.pdf .

Anyone can send input to the BC Government from September 16 to November 29, 2019, by emailing [email protected] or by using the other avenues for input that the BC Framework specifies.

In summary, we commend the BC Government for committing to bring forward a provincial disability accessibility law, for its proposed Framework for this law, and for consulting the public on it. However, the Framework’s proposal, while helpful, is missing key ingredients. As written, and unless strengthened in accordance with our 12 recommendations, it risks running into the same serious problems as have been experienced in Ontario, Manitoba and Nova Scotia. These same problems are predicted for the new Accessible Canada Act.

We congratulate Barrier-Free BC’s tireless grassroots efforts over the past four years that have led to this important development. The AODA Alliance is proud to have played a small part in the launch of the grassroots movement that has brought BC to this point. Four years ago this month, on October 28, 2015, a meeting of grassroots activists was held in Vancouver. It led to the birth of Barrier-Free BC. Barrier-Free BC is BC’s counterpart to the AODA Alliance. At that kick-off meeting, the keynote speaker was AODA Alliance Chair David Lepofsky. We congratulate Barrier-Free BC on their excellent work over the past four years, and continue to be available to offer our advice whenever asked.

Today, the topic of BC disability accessibility legislation is expected to be the focus of CBC’s provincial radio call-in program in BC. AODA Alliance Chair David Lepofsky has been invited to be one of that program’s guests. If the program goes ahead as scheduled, the broadcast can be streamed live at this link https://www.cbc.ca/listen/live-radio/1-4-bc-today It should then be available as a podcast, at least for a few days. Search for the program “BC Today” on your favourite smart phone podcasting app, or via your computer, on the web.

          MORE DETAILS

Accessibility for Ontarians with Disabilities Act Alliance

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

www.aodaalliance.org Email: [email protected] Twitter: @aodaalliance

Submission of the AODA Alliance to the Government of British Columbia on the BC Framework for New Provincial Accessibility Legislation

October 1, 2019

Sent to: [email protected]

Introduction

This is the AODA Alliance’s submission to the BC Government on its proposed Framework for a new BC disability accessibility law. We welcome this opportunity to share our experience in this area. We would be delighted to do whatever we can to assist the BC Government with this endeavour.

The BC Government’s proposed Framework for disability accessibility is available at ##

We heartily commend the BC Government for committing to bringing forward a provincial disability accessibility law, for posting its proposed Framework for this law, and for consulting the public on it. We call for all provincial governments in provinces lacking accessibility legislation to show this kind of commendable leadership.

This submission shows that the BC Framework, while helpful, is missing key ingredients. As written, and unless strengthened in accordance with our recommendations, it risks running into the same serious problems as have been experienced in Ontario, Manitoba and Nova Scotia. These same problems are also predicted for the new Accessible Canada Act.

Below we provide 12 practical suggestions on what to add to the BC Framework to make this legislation effective. What is needed is both clear and readily doable. We want to help BC learn from both the accomplishments and the problems experienced with existing legislation. BC has the chance to lead Canada by coming up with the best accessibility law developed to date. The Appendix at the end of this submission lists all our 12 recommendations in one place.

In addition to the specific recommendations below, we ask the BC Government to read the AODA Alliance’s September 27, 2018 brief to Parliament on Bill C-81, the proposed Accessible Canada Act. It is among the most extensive analyses of that bill at First Reading. Some of our recommendations were eventually incorporated into the Accessible Canada Act. They were also incorporated into amendments which the federal NDP and Conservatives tried to get the Federal Government to agree to as amendments to the bill. However, the analysis is almost entirely applicable to the provincial context that the BC Government will be addressing. You can download the September 27, 2018 AODA Alliance brief to Parliament on Bill C-81 by visiting https://www.aodaalliance.org/whats-new/click-here-to-download-in-ms-word-format-the-aoda-alliances-finalized-september-27-2018-brief-to-the-parliament-of-canada-requesting-amendments-to-bill-c-81-the-proposed-bill-c-81/

Who Are We?

What does the AODA Alliance have to offer BC? The AODA Alliance has extensive experience with the design, implementation and enforcement of accessibility legislation in Canada. Founded in 2005, we are a voluntary, non-partisan, grassroots coalition of individuals and community organizations. Our mission is:

“To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act.”

To learn about us, visit our open filing cabinet at https://www.aodaalliance.org.

Our coalition is the successor to the non-partisan grassroots Ontarians with Disabilities Act Committee. The ODA Committee advocated for more than ten years, from 1994 to 2005, for the enactment of strong, effective disability accessibility legislation. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee’s broad, grassroots base. To learn about the ODA Committee’s history, visit: http://www.odacommittee.net.

Beyond our work at the provincial level in Ontario, over the past four years, the AODA Alliance has been active, advocating for strong and effective national accessibility legislation for Canada. We have been formally and informally consulted by the Federal Government and some federal opposition parties on this issue. In 2016, AODA Alliance chair David Lepofsky made public a Discussion Paper on what federal accessibility legislation should include. That widely-read Discussion Paper is now published in the National Journal of Constitutional Law at (2018) NJCL 169-207. Its contents can provide a great deal of guidance to BC, even though it was written to address the federal legislative sphere. You can download our Discussion Paper on what the promised national accessibility law should include by visiting https://www.aodaalliance.org/whats-new/click-here-to-download-the-discussion-paper-on-what-canadas-promised-accessibility-legislation-should-include-as-published-last-year-in-the-national-journal-of-constitutional-law/

We presented on Bill C-81, the proposed Accessible Canada Act, to both the House of Commons and the Senate. Our recommendations played a role in improvements to the Accessible Canada Act. Both the Government of Canada and opposition parties referred to the AODA Alliance and its proposals during parliamentary debates over that legislation.

The AODA Alliance has also spoken to or been consulted by disability organizations, individuals, and governments from various parts of Canada on the topic of designing and implementing provincial accessibility legislation. For example, we have been consulted by the Government of Manitoba and by Barrier-Free Manitoba (a leading grassroots accessibility advocacy coalition in Manitoba) in the design and implementation of the Accessibility for Manitobans Act 2013. We twice made deputations to a Committee of the Manitoba Legislature on the design of that legislation. We have been consulted by the previous BC Government on whether to create a BC Disabilities Act, and by Barrier-Free BC in its grassroots advocacy for that legislation. AODA Alliance Chair David Lepofsky was the keynote speaker at the October 28, 2015 meeting in Vancouver where Barrier-Free BC was established.

We have also been consulted outside Canada on this topic, most particularly, in Israel and New Zealand. In addition, in June 2016, we presented on this topic at the UN annual international conference of state parties to the Convention on the Rights of Persons with Disabilities.

Our Recommendations

Purpose of the BC Legislation

The BC Framework proposes that the BC accessibility law should have these purposes, and asks what the public thinks of them:

“1. To support Canada’s ratification of the UNCRPD by promoting, protecting and ensuring the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and by promoting respect for their inherent dignity.

  1. To identify, remove, and prevent barriers encountered by people with disabilities in their daily lives through the development, implementation, and enforcement of accessibility standards.
  2. To allow persons with disabilities and other impacted stakeholders in the public and private sectors to work collaboratively towards the timely development of accessibility standards.
  3. To ensure there are adequate mechanisms in place to track progress on accessibility.
  4. To promote compatibility with the Accessible Canada Act and between federal and provincial accessibility standards.”

The proposed purposes of the BC accessibility law set out in the BC Framework, while helpful, are far too weak. It is very important to substantially strengthen the proposed purposes for the BC disabilities legislation. We have learned that the goal must be the achievement of an accessible or barrier-free society, or both, pure and simple. Nothing short of that will do.

We have also learned that an end date must be set in the legislation. Ontario’s AODA has both the goal of accessibility, and nothing less, and an end date. These are real strengths in that legislation. The Accessible Canada Act has both the goal of a barrier-free Canada and an end date. We and others fought long and hard to get this goal enshrined in the Accessible Canada Act. The Senate added the end date of 2040 to Bill C-81 last May. At the last minute, when Bill C-81 came back to the House of Commons this past June, on the eve of its rising for the federal election, the Federal Government finally withdrew its objection to enshrining an end date for accessibility in the bill.

We therefore recommend that:

#1. The BC accessibility law should have the purpose of achieving a barrier-free and accessible BC by an end date to be set in the legislation, using the definitions of “disability” and “barrier” proposed in the AODA Alliance’s Discussion Paper on national accessibility legislation.

Do Not Let the Accessible Canada Act Serve as a Constraint or Limit on BC Accessibility Legislation

The BC Framework includes the following, among other things, in its discussion of the proposed purposes of the BC accessibility law:

” To promote compatibility with the Accessible Canada Act and between federal and provincial accessibility standards.”

At first, that may seem sensible. However, it risks having BC measures on accessibility sink to the lowest common denominator. BC should never feel constrained to follow or imitate anything done at the federal level if it is too weak. BC should not commit in advance to be compatible with a federal accessibility measure that is insufficient.

For example, the Canadian Transportation Agency has recently adopted new federal transportation regulations on accessibility. They are helpful in part, but have serious problems. BC should not tie its hands in such circumstances.

We therefore recommend that:

#2. BC legislation should not commit to ensure that it or measures under it will be compatible with the Accessible Canada Act if this will lead to insufficient protections for people with disabilities.

 Nothing Should Ever Reduce the Rights of People with Disabilities

It is important that nothing be done under the new BC accessibility law that reduces the rights or opportunities of people with disabilities.

We therefore recommend that:

#3. Nothing in the BC disability accessibility law, or in its regulations or in any actions taken under it should be able to reduce in any way any rights which people with disabilities enjoy under law.

Several provincial laws address aspects of accessibility for people with disabilities. A new BC accessibility law and regulations enacted under it will hopefully add more accessibility requirements.

There is no assurance that these laws will all set the same level of accessibility. The new BC accessibility law should ensure that the law which provides the greatest amount of accessibility should always prevail. Section 38 of the AODA is instructive. It commendably provides:

” 38. If a provision of this Act, of an accessibility standard or of any other regulation conflicts with a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises shall prevail.”

We therefore recommend that:

#4. If a provision of the BC accessibility law or of a regulation enacted under it conflicts with or sets a different accessibility standard than a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises should prevail.

Setting Mandatory Timelines for Enacting Accessibility Regulations

A central and fundamentally important part of the BC accessibility legislation would be the Government enacting new accessibility regulations. These would specify in detail what obligated organizations must do to become accessible to people with disabilities. The BC Framework states:

“Accessibility standards would provide guidance about best practices for accessibility including desired accessibility outcomes.”

The BC Framework suggests at one point that it would be permissible for the Government to enact accessibility regulations that are enforceable. However, it does not there make it clear that the Government would have a duty to do so. The Framework states:

“Government envisions accessibility legislation that allows for the creation of both voluntary accessibility standards as well as mandatory accessibility regulations. Accessibility legislation would allow the Government of British Columbia to adopt standards as binding regulations in part or in whole.”

Yet elsewhere the BC Framework states:

“To ensure progress, accessibility legislation could require timelines to achieve the timely development, implementation and revision of accessibility standards.”

It is essential that the law impose a clear and strong duty on the Government to create these standards, and for it to set enforceable timelines for creating these standards. Otherwise, they may never be created, or they may take excessive amounts of time to be created.

We know from experience under Ontario’s AODA’s predecessor law, the Ontarians with Disabilities Act 2001, that it is insufficient to merely give a Government the power to enact accessibility standards or regulations, without requiring that Government to ever do so. The Ontarians with Disabilities Act 2001 permitted the Ontario Government to enact accessibility standards, but that Government never enacted any under that legislation. That in part is why Ontario later enacted the stronger AODA.

One of the major criticisms of the Accessible Canada Act is that it gives the Federal Government a number of helpful powers, such as the power to enact accessibility regulations, but for the most part does not require that these powers be used. it also does not for the most part set timelines for their deployment. That is why we and so many others said that the Accessible Canada Act is strong on good intentions but weak on implementation.

We therefore recommend that:

#5. The BC accessibility law should require the Government to create all the accessibility standards as enforceable regulations that are needed to achieve the law’s goal, and should set timelines for enacting these regulations.

Areas for Accessibility Standards to Cover

The BC Framework states:

“Accessibility standards could cover a variety of areas including:

Service Delivery

Employment

Built Environment

Information and Communication

Transportation”

These are all helpful areas. However, we know from extensive Ontario experience that this list is insufficient. It is helpful if the bill lists some of the areas that enforceable accessibility regulations can cover, so long as it is clear that they are not the only areas that these regulations can cover.

Moreover, the list that the law spells out should be expanded. It should include enforceable accessibility regulations to address disability accessibility barriers in education, health care, housing, and ensuring public money is never used to create or perpetuate disability accessibility barriers. This last area is addressed further below.

In Ontario, after years of campaigning, accessibility regulations are now under development in the areas of education and health care. The AODA Alliance led the fight for these to be included. We have been asking for almost a decade for an accessibility regulation to be created to address accessibility in residential housing. British Columbians with disabilities should not have to endure the hardship of having to wage similar multi-year battles just to get these topics on the regulatory agenda.

We therefore recommend that:

#6. The BC accessibility law should include requirements to enact accessibility standards in the areas of education, health care, housing and ensuring that public money is never used to create or perpetuate disability barriers. It should make it clear that its list of accessibility regulations is not exhaustive.

Adopting Other Pre-existing Accessibility Standards

The BC Government is contemplating the possibility of adopting some pre-existing accessibility standards that are in place elsewhere, as part of its efforts under this legislation. The BC Framework states:

“The Government of British Columbia could seek to expedite the development of accessibility standards by adopting or building on existing standards, policies and practices developed elsewhere in Canada or around the world.”

It is desirable to avoid re-inventing the wheel. However, we caution that pre-existing accessibility standards can be seriously deficient. For example, those enacted to date in Ontario are fraught with problems, as earlier Independent Reviews of the AODA have documented on our urging. We can provide ample details on this.

We therefore recommend that:

#7. The BC accessibility law should only allow BC to adopt an accessibility standard created in another jurisdiction “as is” if it is satisfied that that standard is sufficient as is.

Governance, Compliance and Enforcement

We strongly commend to BC our recommendations for governance, compliance and enforcement that are set out in our published Discussion Paper on what a national accessibility law should include, and our September 27, 2018 brief to Parliament on Bill C-81, both referred to above.

The BC Framework considers as a possible feature of its implementation/enforcement regime the following:

“Reduced reporting requirements for individuals and organizations that show accessibility leadership.”

We disagree. It is of course commendable for an obligated organization to show leadership on accessibility. However, that should not lead to any reduction in that organization’s reporting obligations. Just because an organization has done well on accessibility in the past does not mean that it will continue to do so in the future and need only have reduced accountability. Reporting requirements are always needed to help monitor and motivate compliance.

We therefore recommend that:

#8. The BC accessibility law should include the compliance, monitoring and enforcement features recommended in the AODA Alliance Discussion Paper on national accessibility legislation, and in its September 27, 2018 brief to Parliament on Bill C-81.

#9. The BC accessibility law should not provide for reduced reporting requirements for an obligated organization that has shown leadership on accessibility.

How Often Should There Be an Independent Review of the BC Accessibility Law’s Implementation?

It is good that the BC Framework contemplates including in the law a requirement for the Government to periodically appoint an Independent Review of the new accessibility law’s implementation. These have been very important in Ontario.

The BC Framework asks how often these should take place. Ontario’s legislation got it right.

The AODA required the first Independent Review to begin three years after the AODA was passed. It requires each successive Independent Review to be appointed four years after the previous one was completed. Each Independent Review takes one year to conduct, once appointed. Therefore, the interval between the first and second AODA Independent Review, and between the second and third AODA Independent Review, have in each case been in the range of 5 years, not four. Nothing shorter would be appropriate.

The recommendations from each of the three AODA Independent Reviews came at important times. It would have been harmful to Ontarians with disabilities had they been delayed any longer. We only regret that the Ontario Government has not acted promptly on any of those reports’ helpful findings and recommendations.

In contrast, the Federal Government set too long a period in the Accessible Canada Act. The first Independent Review won’t begin under federal legislation til almost twice as long a period as was the case in Ontario. That will work to the substantial disadvantage of people with disabilities across Canada. This is especially troubling since under the Accessible Canada Act, the Federal Government need not create any enforceable accessibility standard regulations in that period.

We therefore recommend that:

#10. The BC accessibility law should require the first Independent Review of that legislation to be appointed within three years after that law goes into effect, and thereafter, every four years after the previous Independent Review delivered its report.

Key Features Needed in the BC Accessibility Law that the BC Framework Does Not Identify

While the BC Framework includes several helpful key ingredients for a new BC accessibility law, there are additional features that are very important, and that were not identified in that Framework. We summarize these here. They are discussed in greater length in our Discussion Paper on national accessibility legislation, and in our September 27, 2018 brief to Parliament on Bill C-81.

We therefore recommend that:

#11. The BC accessibility law should

  1. a) Specify that the BC Government as a whole is responsible for leading Canada to the goal of accessibility, in so far as the BC Government has constitutional authority to do so.
  1. b) Impose specific duties and implementation time lines on the BC Government, and on specified public officials and agencies, regarding their roles to implement and enforce the law.
  1. c) Require the BC Government to review all its statutes and regulations for accessibility barriers.
  1. d) Enforceably require that no public money can be used to create or perpetuate barriers against people with disabilities, e.g. money spent on procurement, infrastructure, grants, loans or transfer payments.
  1. e) Require the BC Government to use all other readily-available levers of power to advance the goal of accessibility.
  1. f) Require that whenever a BC statute or regulation confers a discretionary power on any federal public official, department or agency, that decision-maker shall take into account, in its exercise, its impact on accessibility for people with disabilities.
  1. g) Require the BC Government to ensure that provincial and municipal elections become barrier-free for voters and candidates with disabilities.
  1. h) Include effective measures to ensure that the BC Government becomes a model accessible workplace and service-provider.
  1. i) Require the BC Government to develop and implement a plan to ensure that all provincially-operated courts and federally operated regulatory tribunals become accessible.

We especially focus on one of these needed additions. The BC Government can bring about significant progress towards accessibility by making sure that no one uses public money to create, perpetuate or exacerbate disability barriers. Many in society want to receive provincial public money, as venders, infrastructure builders, businesses, colleges, universities, hospitals, and governmental transfer partners. The law should attach clear monitored, enforced mandatory accessibility strings to that money. Anyone accepting those funds should be bound by the strings attached.

Provincial spending that should be subject to this requirement should include, for example:

  1. a) spending on procuring goods, services and facilities, for use by the BC Public Service and the public.
  1. b) BC spending on capital and infrastructure projects, including projects built by the BC Government, municipalities or others.
  1. c) BC spending on business development grants and loans, and on research grants for universities and other organizations.
  1. d) BC transfer payments to transfer agencies for programs, like health care.
  1. e) Any other BC Government contract.

This spending would give the BC Government substantial leverage to promote accessibility. Widely-viewed AODA Alliance online videos have demonstrated that new construction, including construction on infrastructure using public money, have included serious accessibility problems. These videos secured significant media coverage. See:

The AODA Alliance’s May 2018 video showing serious accessibility problems at new and recently renovated Toronto area public transit stations.

The AODA Alliance’s October 2017 video showing serious accessibility problems at the new Ryerson University Student Learning Centre.

The AODA Alliance’s November 2016 video, showing serious accessibility problems at the new Centennial College Culinary arts Centre.

Ontario experience shows that this must be specifically legislated, monitored and enforced. There has been limited success in getting some new Ontario laws enacted and policies adopted. They lack needed visibility, strength and enforcement. They have not had the impact needed. The Ontario Government has thereby missed out on huge opportunities to generate greater accessibility.

The Federal Government has similarly missed out on a huge opportunity here. It declined to include the needed measures to address this in the Accessible Canada Act. The Accessible Canada Act allows the Government to make accessibility standards in the area of procurement, but does not require these to be made.

Canada’s Senate made a formal “observation” on Bill C-81 when it passed other amendments to strengthen the bill. It called for federal action to ensure that federal public money is not used to create disability barriers.

Don’t Make the Same Mistakes in the Accessible Canada Act

We commended the Federal Government for committing to national accessibility legislation, and have identified several helpful features in the Accessible Canada Act. However despite the efforts and recommendations of many from the disability including the AODA Alliance, there are several shortcomings in that law. BC should avoid these. These are extensively identified on the Canada page of the AODA Alliance website and in our September 27, 2018 brief to Parliament.

Apart from deficiencies already discussed above are the following major problems, identified in our March 29, 2019 brief to the Senate on Bill C-81:

* “The bill gives the Federal Government and federal accessibility agencies/officials helpful powers to promote accessibility. However, the bill imposes no duty on them to ever use those powers, with one inconsequential exception.

The bill also sets no deadlines for taking many of the major implementation steps that the Government must take to implement this bill. The Government could drag its feet for years if not indefinitely.

For example, the bill lets the Government enact accessibility standards as enforceable regulations. However, the bill does not require the Government to ever enact any. Without them, the bill is a hollow shell.

The bill gives the Federal Government enforcement powers. However it doesn’t require the bill to be effectively enforced.

During the first five years after this bill goes into effect, the Federal Government’s only mandatory duty under the bill is for Cabinet, the CRTC and Canada Transportation agency to enact one regulation within two years after the bill comes into force. However that regulation could be an inconsequential one on minor procedural matters, without ever requiring that any disability barriers be removed or prevented.”

* “The 105-page bill is far too complicated and confusing. It will be hard for people with disabilities and others to navigate it. This is because the bill splinters the power to make accessibility standard regulations and the power to enforce the bill among a number of federal agencies, such as the new federal Accessibility Commissioner, the Canada Transportation Agency (CTA) and the Canadian Radio, Television and Telecommunications Commission (CRTC).

This makes the bill’s implementation and enforcement less effective, more confusing, more complicated and more costly. It will take longer to get accessibility regulations enacted. It risks weak, contradictory or unnecessarily complex regulations.

This splintering makes it much harder for people with disabilities to navigate the system, to find out what rights they have, and to get violations fixed. People with disabilities are burdened to learn to navigate as many as three or four different sets of accessibility rules, enforcement agencies, procedures, forms and time lines for presenting an accessibility complaint. That weakens the rights and voices of people with disabilities.

This splintering only helps existing federal bureaucracies that want more power, and any large obligated organizations that want to dodge taking action on accessibility. Those organizations will relish exploiting the bill’s confusing complexity to delay and impede its implementation and enforcement.

It is wrong for the bill to give almost exclusive powers over accessibility to federally-regulated transportation organizations (like airlines) to the CTA, and almost exclusive powers over broadcasters and telecommunication companies (like Bell Canada and Rogers Communications) to the CRTC. The CTA and CRTC have had powers in this area for years. Their record on accessibility is not good.

The CTA and CRTC are too close to the industries they regulate. They lack expertise in disability accessibility. The industries the CTA and CRTC regulate would love to have those agencies stay largely in control of their accessibility obligations, given their inadequate regulatory track records on accessibility.

We ask for the bill to be simplified, to get rid of its harmful splintering of federal accessibility oversight responsibilities. Only the Federal Cabinet should make accessibility regulations. Only the new federal Accessibility Commissioner should enforce the bill. This ensures clearer, smoother, lower-cost, easier-to-access one-stop-shopping for people with disabilities, and easier implementation for the Federal Government and obligated organizations.

Under the bill, transportation organizations, broadcasters and telecommunication companies must make two concurrent accessibility plans, one supervised by the Accessibility Commissioner and the other supervised either by the CTA or CRTC. That also makes compliance and enforcement more costly and confusing. We ask for the bill to be amended so that all obligated organizations will only have to make one accessibility plan, not two, all supervised by the new federal Accessibility Commissioner.

It is no solution to the bill’s “splintering” problem for the Federal Government to say that there will be “no wrong door” for a person to file a complaint. The problem is not just the four different doors that a person with a disability must choose to enter. There are also as many as three or four different procedures they must figure out, even after they enter the right door. That is a formula for confusion, and for tripping up people with disabilities.”

* “The bill has too many loopholes. As one example, the bill gives the Federal Government the power to exempt itself from some of its duties under the bill. The Government should not be able to exempt itself. We request an amendment to close the bill’s loopholes, such as the Federal Government’s power to exempt itself from some of its duties under the bill.”

Concerns with Public Funding of the Rick Hansen Foundation Private Accessibility Certification Program

The BC Framework notes that the BC Government has given the Rick Hansen Foundation 10 million dollars in connection with its private accessibility certification program. When the Ontario Government recently announced its intention to give public money to the Rick Hansen Foundation for this purpose, we raised serious concerns. Our investigation of this process resulted in our making public two reports. These amply document our serious concerns.

Among other things, we are concerned that there is no assurance that those who conduct the RHF’s private accessibility certification assessments are qualified to do so. The RHF 8-day training course is woefully inadequate. As well, the RHF process for assessing a building’s accessibility itself has serious problems. It also lacks proper safeguards against conflicts of interest on the part of its assessors or the RHF itself.

As a result, there can be no assurance that a building that the RHF certifies as “accessible” is in fact accessible. Moreover, a government should not delegate to an unaccountable private organization any responsibility to decide what standard for accessibility should be used.

Any BC accessibility legislation should not involve any such private accessibility certification process. Any accessibility standards should be publicly set, publicly monitored and publicly enforced.

Feedback from the disability community has echoed and reinforced our concerns in this area. Our concerns have garnered media attention and coverage.

The AODA Alliance’s July 3, 2019 report on the RHF private accessibility certification program is available at https://www.aodaalliance.org/category/whats-new/

The AODA Alliance’s August 15, 2019 supplement report on the RHF private accessibility certification program is available at https://www.aodaalliance.org/whats-new/the-doug-ford-governments-controversial-plan-to-divert-1-3-million-into-the-rick-hansen-foundations-private-accessibility-certification-program-is-plagued-with-even-more-problems-than-earlier-rev/

We therefore recommend that:

#12. The BC accessibility law should ensure that the making and enforcing of accessibility standards are exclusively done by public officials. It should not provide for any public funding of any private accessibility certification programs.

Appendix – List of Recommendations

#1. The BC accessibility law should have the purpose of achieving a barrier-free and accessible BC by an end date to be set in the legislation, using the definitions of “disability” and “barrier” proposed in the AODA Alliance’s Discussion Paper on national accessibility legislation.

#2. BC legislation should not commit to ensure that it or measures under it will be compatible with the Accessible Canada Act if this will lead to insufficient protections for people with disabilities.

#3. Nothing in the BC disability accessibility law , or in its regulations or in any actions taken under it should be able to reduce in any way any rights which people with disabilities enjoy under law.

#4. If a provision of the BC accessibility law or of a regulation enacted under it conflicts with or sets a different accessibility standard than a provision of any other Act or regulation, the provision that provides the highest level of accessibility for persons with disabilities with respect to goods, services, facilities, employment, accommodation, buildings, structures or premises should prevail.

#5. The BC accessibility law should require the Government to create all the accessibility standards as enforceable regulations that are needed to achieve the law’s goal, and should set timelines for enacting these regulations.

#6. The BC accessibility law should include requirements to enact accessibility standards in the areas of education, health care, housing and ensuring that public money is never used to create or perpetuate disability barriers. It should make it clear that its list of accessibility regulations is not exhaustive.

#7. The BC accessibility law should only allow BC to adopt an accessibility standard created in another jurisdiction “as is” if it is satisfied that that standard is sufficient as is.

#8. The BC accessibility law should include the compliance, monitoring and enforcement features recommended in the AODA Alliance Discussion Paper on national accessibility legislation, and in its September 27, 2018 brief to Parliament on Bill C-81.

#9. The BC accessibility law should not provide for reduced reporting requirements for an obligated organization that has shown leadership on accessibility.

#10. The BC accessibility law should require the first Independent Review of that legislation to be appointed within three years after that law goes into effect, and thereafter, every four years after the previous Independent Review delivered its report.

#11. The BC accessibility law should

  1. a) specify that the BC Government as a whole is responsible for leading Canada to the goal of accessibility, in so far as the BC Government has constitutional authority to do so.
  1. b) impose specific duties and implementation timelines on the BC Government, and on specified public officials and agencies, regarding their roles to implement and enforce the law.
  1. c) require the BC Government to review all its statutes and regulations for accessibility barriers.
  1. d) enforceably require that no public money can be used to create or perpetuate barriers against people with disabilities, e.g. money spent on procurement, infrastructure, grants, loans or transfer payments.
  1. e) require the BC Government to use all other readily-available levers of power to advance the goal of accessibility.
  1. f) require that whenever a BC statute or regulation confers a discretionary power on any federal public official, department or agency, that decision-maker shall take into account, in its exercise, its impact on accessibility for people with disabilities.
  1. g) require the BC Government to ensure that provincial and municipal elections become barrier-free for voters and candidates with disabilities.
  1. h) include effective measures to ensure that the BC Government becomes a model accessible workplace and service-provider.
  1. i) require the BC Government to develop and implement a plan to ensure that all provincially-operated courts and federally operated regulatory tribunals become accessible.

#12. The BC accessibility law should ensure that the making and enforcing of accessibility standards are exclusively done by public officials. It should not provide for any public funding of any private accessibility certification programs.



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Will Ontario’s New Government Ensure that New Courthouses, Built Using Public Money, Are Barrier-Free for People with Disabilities? — The Previous Government’s Plans for the New Toronto Courthouse Still Have Significant Accessibility Barriers


Accessibility for Ontarians with Disabilities Act Alliance Update

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

www.aodaalliance.org  [email protected] Twitter: @aodaalliance

Will Ontario’s New Government Ensure that New Courthouses, Built Using Public Money, Are Barrier-Free for People with Disabilities? — The Previous Government’s Plans for the New Toronto Courthouse Still Have Significant Accessibility Barriers

January 28, 2019

          SUMMARY

Ontario’s new Ford Government has committed to be more responsible in the use of public money than was the former Ontario Government. Here is an example of where they can and should make a real difference.

We often emphasize that public money should never be used to create or perpetuate disability barriers. Yet the former Ontario Government’s plans for a new major courthouse in downtown Toronto still lack full and proper accessibility, even though some good steps have been taken to include some needed accessibility features. The AODA Alliance has been in the lead in bringing this issue to public attention.

Here is the latest installment in this story. To its credit, the team leading the design and construction of the New Toronto Courthouse, intended for the heart of downtown Toronto, recently built a mock-up of a courtroom, and a public service counter, to be included in that facility. The team commendably sought input from various stakeholders on this mock-up, including from an accessibility perspective. On January 16, 2019, AODA Alliance Chair David Lepofsky was given a hands-on tour. He found a number of helpful features in the design, but a number of serious accessibility barriers.

A number of the barriers we discovered are described in the January 21, 2019 letter from the AODA Alliance to Assistant Deputy Attorney General Dante Pontone. We set that letter out below. We earlier described other examples of accessibility problems with this courthouse’s design in the AODA Alliance’s October 5, 2017, and April 6, 2018 letters to the previous Attorney General, and in our May 22, 2018, letter to Assistant Deputy Attorney General Dante Pontone. More on this topic can be found in our May 31 2018 and June 1, 2018 letters to Mr. Pontone, which we set out below.

It is good that there are some helpful accessibility features in this mock-up. However, it is very troubling that there are the accessibility problems that we and others have identified, especially since construction of this courthouse is meant to begin later this year. We await word on what the Ontario Government is going to do about these concerns.

There has been another interesting and important development in our quest for a fully accessible court system. One important way for the public to participate in the justice system is as a member of a jury. Yet people with disabilities have faced barriers impeding them from serving as a juror. Last fall, in a break-through, a person with vision loss was permitted to serve as a juror. Below at the end of this Update is an article from the December 29, 2018 Toronto Star reporting on this event. It quotes AODA Alliance Chair David Lepofsky, among others.

For more background on the courts accessibility issue, you might check out the ground-breaking 2007 official report entitled “Making Ontario’s Courts Open to Persons with Disabilities” which you can find on the website for the Ontario Court of Appeal.

Finally, on another accessibility topic, there have now been 221 days since the Ontario Government shut down the work of the AODA Standards Development Committees that were working on recommendations on what the Government should include in the Health Care Accessibility Standard and the Education Accessibility Standard. The longer this freeze goes on, the more students with disabilities and patients with disabilities have to continue enduring unfair accessibility barriers.

          MORE DETAILS

January 21, 2019 Letter from the AODA Alliance to Ontario’s Assistant Deputy Attorney General Dante Pontone

ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

1929 Bayview Avenue

Toronto, Ontario M4G 3E8

Email: [email protected]

Visit: www.aodalliance.org

January 21, 2019

To: Dante Pontone, Assistant Deputy Attorney General

Via email: [email protected]

CC: The Hon. Caroline Mulroney, Attorney General of Ontario

[email protected]

Paul Boniferro Deputy Attorney General for Ontario

[email protected]

Dear Sir,

Re: Disability Accessibility Issues in the New Toronto Courthouse

I am writing to bring to your attention further concerns regarding the plans for accessibility at the New Toronto Courthouse, which is supposed to begin construction later this year. As you know, the AODA Alliance has been raising concerns about this project over the past two years.

We appreciate your efforts and interventions to date to try to address our concerns. As a result of your efforts, there have been some improvements. However, as things now stand, we have no assurance that the courthouse that is to be built will in fact be properly accessible for court participants and other attendees with disabilities. We need your intervention now to fix this.

As you recall, as of the 2017 fall, three years into the design of this courthouse, the initial team setting the accessibility project specifications for this courthouse (which was later terminated), and the subsequent team that is to oversee the bidding process and compliance with the project by the winner as it relates to this issue had never consulted with any people with disabilities. It was only after our discovering this and pressing for change that the Government belatedly decided to form a disability advisory group to review the project plans and offer accessibility input. For the AODA Alliance, I am a member of that advisory group.

By the time our advisory group had been formed and met in the 2018 spring, the Government had already settled on the project accessibility requirements, had conducted the competitive bid, and had chosen the successful bidder and design. Our advisory group quickly discovered a series of serious accessibility problems with the planned design. I have detailed some salient accessibility concerns regarding this project in my October 5, 2017, and April 6, 2018 letters to the previous Attorney General, and in my May 22 and 31, and June 1, 2018 letters to you. Key correspondence on point is posted on the AODA Alliance website.

It is our understanding from what we have been told by Government representatives, the Government’s various consultants on this project, and the successful bidder Ellis Don, that some of the accessibility concerns that the disability advisory group has raised cannot be addressed, because it is too far along in the planning for this new courthouse. This is emblematic of the fact that accessibility must be centrally incorporated into a project’s planning from the very start. It should not be left, in whole or in part, to much later in the process, as was the case here.

This should not come as news to the Ministry of the Attorney General, or to Infrastructure Ontario. Both of those public organizations have known this for years but have evidently failed to effectively act on it. We regret that there appears to be within both organizations some systemic impediments to acting effectively on accessibility for people with disabilities.

It is good that the Government is working now on developing a new accessibility standard for new courthouses, and that this is being taken into account earlier in the design of the future Halton Courthouse project. However, the 2007 Weiler Committee report on disability accessibility barriers in the court system had pointed out some 12 years ago about the need to develop a new and update-to-date accessibility standard for courthouse design. Since then, several new courthouses have been built at huge public expense, but without ensuring their proper accessibility. All of this is going on years after the Ontario Legislature unanimously passed the Accessibility for Ontarians with Disabilities Act in 2005, and a third of a century after equality for people with disabilities was enshrined in the Ontario Human Rights Code and the Charter of Rights.

Let me turn to the specifics of the New Toronto Courthouse courtroom and service counters mock-up that I visited on January 16, 2019. It was good to see a number of accessibility features built into the mock-up. However, I identified a number of accessibility concerns. Evidently, others who have earlier visited the mock-up also pointed out the same or different concerns.

It is good that the Government had this mock-up prepared, and that it sought input on it, including on accessibility concerns. It is, however, deeply troubling that a number of these problems made their way into this design even at this late stage. This happened after the Government had consulted with our disability advisory group on the building’s design, after there were two accessibility consultants on retainer to advise on this project (one for the Government and one for EllisDon), and after advice on some of these issues had already been given by the disability advisory group.

  1. It appears that in the design of the courtroom mock-up, no account was taken of the space, line-of-sight, and lighting needs to accommodate sign language interpreters in the courtroom. During my review of the mock-up, I asked if the team had consulted a sign language interpreter on this. I was told only that a hard of hearing member of the disability advisory group had toured the mock-up (i.e. after the mock-up had already been designed)

During my tour of the mock-up, I explained that the design needs to accommodate the needs of Sign Language interpreters in several different positions in the courtroom, e.g. interpreting for counsel, or for an accused, or for a witness. More than one interpreter could be interpreting from different positions in the courtroom at the same time. The interpreter needs to have enough room. There must be a clear line of sight to the person for whom they are interpreting. The lighting needs to be appropriate.

I had raised this specific issue months ago, during a meeting the Government and EllisDon had with the disability advisory group. At that time, a lead design official for EllisDon had not even known that Sign Language interpretation had to take place in the courtroom, unlike other spoken language interpreters who can be situated in a remote booth elsewhere in the courthouse.

Because I had given this feedback months ago, it is difficult to understand why this was not further explored and addressed prior to designing the courtroom layout and going to the substantial expense of building the mock-up. Having learned of the failure by the Government and EllisDon to deal with this, I have just connected the Government’s accessibility consultants with a Sign Language Interpreter I know, who works in the Toronto courts, and who is readily available to advise the Government on this issue.

  1. It is good that there are power door openers e.g. for the courtroom doors. However, none of these that I examined had accessible Braille signage for them. There was also no Braille signage for security card readers. The card readers I saw were close to a power door operator, both unlabeled, and both similarly shaped. This should be an obvious and simple accessibility provision for all such controls.
  1. There is a serious barrier to effective communication at the proposed Court Services counters. The mock-up for the Court Services office has a Plexiglas barrier from the counter level to the ceiling for each public service counter. A couple of small openings are cut out for a member of the public to speak to the Court Services official, behind the barrier, and to pass documents back and forth.

I was told that this partition is intended for security for the Court Services workers. It is not meant as bullet-proof protection. Anyone entering the building is required to go through scanners to prevent weapons from entering the courthouse. Rather, this is to prevent a member of the public for lunging at a Court Services worker.

I pointed out the obvious fact that this Plexiglas partition presents a significant communication barrier for people who have difficulties hearing. I was told that there would be a hearing loop technology available. When I asked, I was told there had been no plans for a speaker to amplify the voice of the Court Services worker.

The designers were evidently aware that there is an issue here, as the mock-up presented three different kinds of openings, through which a member of the public can speak to a Court Services official. I was asked for feedback on which option for openings in the partition seemed more effective for talking to the Court Services staff.

I presented the fact that this communication barrier will be a big problem for many, not just for those who having hearing loss to the degree where they use assistive listening devices. I noted that according to the Ministry of the Attorney General’s Court Services officials, the most common request for disability accommodation in the courts is related to hearing loss issues.

I proposed the simple and, I would think obvious solution of replacing the Plexiglas partition with a series of bars, with openings to pass documents through. That would let sound pass through much more easily, while still providing the security needed.

I foresaw that if the Plexiglas design is retained, Court Services workers would have to spend their day yelling through opening in the Plexiglas, while sitting next to other Court Services workers who are similarly yelling through the openings in the partition. I doubt that is an optimal working situation.

I would add to my feedback given at the time that to require members of the public to have to raise their voices to ensure they are heard through the Plexiglas openings might require them to speak loudly about personal information that they would not wish to share with others, who are behind them, waiting in line.

  1. I was told that the intention was for only one out of every six or so public service counters in the Court Services office to be an accessible one. This in turn would require Court Services staff to use technology to give priority to members of the public who need the accessible counter, and then to route them to those counters. Not just for this reason, there is a plan for everyone who comes to that Court Services area to use a touch screen device to sign in, get their number, and know which counter to attend. I address this further below.

I asked why they don’t simply plan for all counters in that area to be at an accessible height. I was told that people who are standing prefer not to have to sign a document at the lower counter height. The counter height could be made adjustable. As an alternative, I suggested a simple low-cost solution. On any accessible counter height could be a moveable box, that would provide a signing surface that accommodates a person who is standing. With this, there would be no need to have to have some sort of process for identifying who needs an accessible counter, and for giving them priority and routing them to the right counter.

  1. I asked how a person would know that it is their turn to proceed to a Court Services counter. I was told that a light over that counter would illuminate. I explained that this was a clear barrier for people with vision loss. There should also be an audio prompt or announcement.

I explained that Service Ontario had a similar accessibility problem until we brought it to attention of senior Government officials. People coming to Service Ontario for help with such things as a health card used to be given a number and told to watch a screen for when their number came up. This happened to me a few years ago. I am blind, and use a readily visible white cane.

  1. As noted above, there is a plan for everyone who wants to go to the Court services counter to have to first get an electronic tablet, key in some information and then get a document printed out that will tell them where to go etc. I suggested the far less costly option of just having everyone line up and wait their turn, as is routinely done at banks and other like services.

The tablet threatens to present accessibility problems. I was told that a Court Services worker would be available to work with people with disabilities. However, this may not be evident to people with disabilities who are there. Moreover, apart from disability concerns, there is always the added confusion of learning to use a new app or tablet, compounded if the system goes out of order. A line-up has none of these problems. I suspect that court attendees would rather not have to learn to navigate some new app.

  1. We were told that the plan is for the prisoner’s box in each courtroom in this new courthouse to have a design that lacks accessibility. There is one step up into the prisoner’s box.

If an accused requires an accessible prisoner’s box, one will be brought in and assembled, when needed. We were told that this would take about an hour to do. It requires the court to be notified in advance of the need for this on a particular day. This in turn requires lawyers to all know that they need to request this in advance. It requires that any such request not get lost in the shuffle of a huge, busy courthouse.

I proposed that instead, they should simply design an accessible prisoner’s box for permanent use in each courtroom, rather than planning in advance to create new barriers. This avoids the need in a very busy courthouse to have to be notified in advance, and to have the accessible prisoner’s box brought in and assembled. The risk is real that the message can get lost and the accommodation not set up in time.

Moreover, in a very busy, rapid turnover courtroom like the one on the ground floor for first appearances, the prisoner’s box should always be an accessible one. An accused, arrested the night before, and brought in for a first appearance, will likely not have a lawyer who knows to request an accessible prisoner’s box.

I was told that the reason the inaccessible design was desired was because police would like the accused to be raised up one step, for when the officer reaches in to cuff the accused. I expect that other solutions to address this problem should be discoverable with some creativity, without needing to have an inaccessible prisoner’s box.

  1. On the wall just outside the courtroom mock-up is a sign listing points for courtroom decorum. We discussed options for making this available in an accessible format.

However, I also asked if the list of points in this public notice included any announcement of how to seek accessibility accommodations while at court. I was told this was not part of the text.

I have several times raised with Ministry officials at the Ontario Courts Accessibility Committee that they need to do a much better job of publicizing the availability of accessibility supports in the courts, including the availability of a Courts Accessibility Coordinator in each court facility. This sign would be an important place to include that information, for the public, as they wait in the hall to enter the courtroom.

I raised a number of other points. The foregoing ones rank among the most serious ones. On the one hand, it is good we are being consulted on this. On the other hand, the fact that these problems were designed into this plan shows that the Ministry and its successful bidder at this late date still are falling quite far short on accessibility.

At this consultation, there were two different accessibility consulting firms present. One was retained by the Government’s project compliance team. The other is retained by EllisDon. The taxpayer is paying for them both. We want to know what accessibility advice they have given on this design. At a recent Ontario Courts Accessibility Committee meeting, the Ministry had indicated that the Government was going to have its accessibility consulting firm report directly to the Ministry, rather than the private architect whom the Government has retained to head the project compliance team. I should note that the head of that team, Roman Mychajlowycz of the Kleinfeldt Mychajlowycz Architects firm, has not attended any of the consultation sessions last year at which I was present, where we gave input on the accessibility problems with this courthouse. He was also not present at the consultation on this mock-up I attended. I do not know if he attended any of the other consultation sessions on this mock-up. Given the seriousness of the recurring accessibility problems with the design of this courthouse, direct face-to-face involvement by the head of the compliance team, paid by the taxpayer, would seem to us to be appropriate, and not merely his subordinates.

Finally, we would like to know the status of the Government’s work on developing an accessibility standard for the design of future courthouse facilities. We have understood that the KMA firm was working on that. We earlier requested from the Government a draft of their proposals. We would also like to see any advice on the KMA proposals that have come from the accessibility consulting firm that are being paid by the taxpayer to advise on it.

We continue to be eager to help ensure that Ontario’s courts become fully accessible to people with disabilities, and that any new court facility be designed to be accessible.

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

May 31, 2018 Letter from AODA Alliance Chair David Lepofsky to Assistant Deputy Attorney General Dante Pontone

To: Dante Pontone, Assistant Deputy Attorney General for Ontario

From: David Lepofsky, Chair, AODA Alliance

Date: May 31, 2018

Thank you so much for attending the May 24, 2018 meeting of the Disability Sector Advisory Group that the Government convened this spring to get input on accessibility issues in the design of the New Toronto Courthouse. Construction of that courthouse is expected to commence sometime next year. We need your active assistance and intervention to ensure that accessibility is properly included in this project.

It was helpful to know that the courthouse design team is considering feedback that the Advisory Group had given at our earlier March 20, 2018 meeting. At the March 14, 2018 meeting we had identified serious accessibility problems in the design of the New Toronto Courthouse that the Government had selected in the competitive process. I want to summarize a few of the key points that the disability sector representatives made at the May 24, 2018 meeting.

* At the May 24, 2018 meeting, the information that the design team gave our Advisory Group revealed that in troubling ways, it appears that the private company that is building this courthouse is giving the building’s aesthetics an improper priority over ensuring accessibility for people with disabilities, with the Government’s evident agreement or silence. I offer two examples from this meeting.

First, back at the March 20, 2018 meeting, we had pointed out that the use of “open risers” in the feature staircase in the courthouse’s main lobby presents an accessibility and safety problem for people with vision loss, among others. The Government’s specific requirements for this building preclude the use of open risers. Yet EllisDon, whom the Government selected to build this courthouse, disregarded this, and included open risers in the building design. The Government selected that design in the competitive bid process, despite its direct contravention of this accessibility requirement in the Government’s Project Specific Output Specifications (PSOS).

At the May 24, 2018 meeting, we were told that the project design team is considering “options” for dealing with this issue. We asked what options are being considered. We did not get a direct answer. They did not want to say what options were being considered. We don’t understand why this was being withheld from us.

Moreover, one of the design team members in effect asked us at the May 24, 2018 meeting if there was no way that open risers could be included in the building. We said “no”. We explained there that they were treating aesthetics as more important than accessibility.

Second, we had indicated at our March 14, 2018 meeting that the three-storey atrium design of the building created several accessibility problems. There would be inconsistent lighting and glare during the day, creating problems for those with low vision. The acoustics present problems for people who are hard of hearing, or people with vision loss who use echo-location to help navigate. People with sensory integration problems, include some with autism, also experience sensory overload in such environments. Eliminating this atrium design would eliminate these problems and create more useable floor space.

At the May 24, 2018 meeting, the project team’s solution appeared to be to keep the atrium design, but to consider canopies, overhangs and blinds to control lighting, and some acoustic protections to reduce acoustic problems. We were told about sound and lighting studies being conducted to look into these effects.

We responded that the aesthetic tail appears again to be wagging the dog. If blinds must be adjusted throughout the day to regulate the light in the building, there is the real risk that this will not always happen. We won’t know that these palliative measures will work until the building is built, by which time it is too late. The acoustic studies did not explore the impact of the acoustic measures on echo-location for navigating the building. We could only be satisfied that these palliative measures all worked if we could now visit a comparably-designed building that includes all these lighting and audio features, to test to see if they are reliable and consistently effective.

* At the May 24, 2018 meeting, we were not shown the layout for any of the non-public secured areas of the building, but were assured that they would be accessible. We asked to be able to see those designs, on an undertaking of confidentiality if necessary, so we can give feedback. We appreciate that the project team agreed to look into this.

* We were told at the May 24, 2018 meeting that the seating area that was proposed for people with disabilities who are waiting for Wheeltrans would be inside the vestibule, just inside the main doors. The disability sector representatives identified several problems with this.

That seating location only has a direct line of sight to half of the pick-up spots where vehicles would arrive. There is an obstructed view to the rest of those drop-off spots. In addition, this seating is placed between the doors to the outside, and the doors to the main floor. As such, people sitting there will have to endure regular blasts of cold air when waiting during the winter, and hot air during the summer, each time the doors open and close.

* We noted that placing Court Services on the third floor presents real problems. This can be the first stop for many who arrive at the courthouse. They must clutter up the elevators to get there, and then head up from there to their destination. This first stop should be on the main floor.

* We understand that there is no location planned to situate the courthouse’s disability accessibility and accommodation coordinator on the ground floor. We emphasized that they should be readily available on the ground floor, to be a first contact, where needed, for court attendees with disabilities.

* We were told that the public was to be told by way of posted signs about the availability of disability services. We emphasized that this was insufficient, as it will not accommodate those with vision loss or dyslexia. I would add that this would not accommodate those with literacy issues.

* At our earlier March 14, 2018 meeting, we were told that only one interview room per floor would be accessible. At the May 24, 2018 meeting we learned that this information had been incorrect. We were told on May 24, 2018 that all of the interview rooms are accessible, but only one room per floor will accommodate a scooter. We were still not able to learn how these rooms are to be assigned, to ensure that they are not simply used by people who don’t need that accessibility feature.

* We learned at the May 24, 2018 meeting that some important accessibility concerns that we raised at our earlier meeting have not been corrected at all. The problematic layout of the six public elevators has not been changed, despite the accessibility concerns. There has also been no change to the plan to have a universal washroom on only eight of the building’s seventeen floors, and not on every floor. No reason for this was given.

* For some of the other concerns we had raised at the March 14, 2018 meeting, we were told that it is now too late in the planning process to change certain aspects of the building’s design. This demonstrates that it was wrong for the Government not to consult on accessibility some three years ago, at the design process’s outset.

We look forward to further meetings with the disability sector advisory group, to ensure that the accessibility concerns with this building are all effectively addressed.

June 1, 2018 Letter from AODA Alliance Chair David Lepofsky to Assistant Deputy Attorney General Dante Pontone

To: Dante Pontone, Assistant Deputy Attorney General for Ontario

From: David Lepofsky, Chair, AODA Alliance

Date: June 1, 2018

Re: Accessibility for Ontarians with disabilities in New Courthouse Construction in Ontario

Thank you for taking the time to speak to me today about the future actions needed to ensure accessibility of the New Toronto Courthouse, about accessibility of the forthcoming new Halton Peel Courthouse (at an earlier stage of design) and about the development of a new Government accessibility standard for new court construction. Here are the key items which we requested and those to which you agreed. If I have anything incorrect, please let me know as soon as possible.

Re the New Toronto Courthouse

I asked that you continue to attend any upcoming meetings of the Disability Sector Advisory Group regarding the New Toronto Courthouse. Your oversight is critically important, in our view. Thank you for being agreeable to this.

We have not been told how many future meetings the Government plans for this Advisory Group regarding the New Toronto Courthouse. I recommended to you that this Advisory Group continue to meet with the Government and its contractors until all the accessibility concerns regarding this courthouse have been effectively resolved. I understood you to be supportive of this.

I explained that it is important in this project, and in each future project, that the Government directly retain the accessibility consultant, retained on these projects, and that this consultant report their accessibility advice directly to the Government. Otherwise, as at present, it appears that their accessibility advice is given to the private architecture firm or other private organization that hired them. What the Government and the public learn about that accessibility advice is only that which the retaining private organization chooses to pass along. The public is paying for that advice. The Government should receive that advice directly, and in its entirety. The public should be able to see this advice as well. I understood that you are going to consider this.

The Halton Peel Courthouse

I understand that the accessibility requirements for the future new Halton Peel courthouse have not yet been finalized. The Project Specific Output Specifications PSOS for that project are still under development.

I recommended that the Government now get advice from the disability community, e.g. from the Disability Sector Advisory Group, as these are being formulated, and certainly long before they are finalized. No longer should we ever be told that it is too late in the design process to take into account an accessibility concern. I understood you to be agreeable to and supportive of this.

I therefore asked that the Government now show us these accessibility requirements at whatever stage they have now reached. Even if they are at a draft or preliminary stage, it would help to see what has been developed so far, so that we can give our feedback. As the New Toronto Courthouse experience revealed once again, the earlier in the design development process this consultation occurs, the better will be the end product.

New Accessibility Standard for Future Courthouses

As we discussed, Bob Topping told the Disability Sector Advisory Group at our inaugural March 14, 2018 meeting that his accessibility consulting firm, DesignAble Environments, was working on a new accessibility standard for new court consultation. Corresponding to this, the lead architect for the EllisDon firm told us at that meeting that when they designed the plans for the New Toronto Courthouse, they used the old accessibility standard that the Ministry has had going back many years.

As a result, I asked you to find out who else, if anyone, is working on this new courthouse accessibility standard, beyond DesignAble Environments? We asked to see that standard in its present state of development. We also proposed that the disability community be consulted on this, as early as possible, in its development. I urged you to contact Mr. Topping to follow up on this and to get more information, since it was he who told us about this work at the March 14, 2018 Advisory Group meeting. You agreed to look into this, including speaking to Mr. Topping. Thank you for agreeing to get back to me on this.

In conclusion there is a clear long term need for problems such as these to be resolved on a Government-wide basis. However, in the meantime, resolving the accessibility needs of Ontarians with disabilities in these courthouse projects cannot await a resolution of broader Government-wide deficiencies in how it deals with planning for the accessibility of new infrastructure construction.

I look forward to hearing from you on the important issues we discussed, and especially on those listed in this letter.

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

The Toronto Star December 29, 2018

Originally posted at https://www.thestar.com/news/gta/2018/11/05/blind-juror-in-toronto-impaired-driving-case-was-almost-rejected.html

Blind juror was almost rejected

Disability advocates seek removal of courtroom barriers

Betsy Powell Toronto Star

A recent criminal trial at Toronto’s downtown Superior Court featured what may be a first in Ontario: a blind juror.

The fact that is, if not a first, an extremely rare occurrence in Ontario underscores that much more needs to be done to remove the barriers to equal treatment in the criminal justice system, disability advocates say.

“Certainly this applies to ensuring adequate representation of persons with disabilities on juries,” says Luke Reid, a lawyer with ARCH Disability Law Centre in Toronto.

The Criminal Code allows people with vision or hearing disabilities to serve on juries. However, an accused may challenge a juror’s service and the Juries Act deems jurors ineligible if they have “a physical or mental disability that would seriously impair his or her ability to discharge the duties of a juror.”

“However, human rights law would demand that this (or any) requirement not be interpreted in an overbroad way and that persons with disabilities have the right to the necessary accommodations,” Reid wrote in email.

Juror 29743 almost didn’t get picked. While there are likely numerous reasons preventing people with impaired vision from sitting on juries, there is still a “very active debate” around the ability of a “trier of fact” to see a witness’s demeanour in order to assess credibility, Reid noted in an email.

“I think courts tend to err on the side of caution where the right of an accused to a fair trial is potentially at issue.”

This fall, a day before jury selection in an impaired driving causing death trial, prosecutor Marnie Goldenberg told the judge she and defence lawyer Carolyn Kerr had some concerns about a prospective juror, who had shown up at the courthouse with a service dog. Goldenberg told the judge numerous photos would be introduced during the two-week trial.

Ontario Superior Court Justice Rob Goldstein told the lawyers while it was entirely appropriate to raise the issue, he didn’t intend to treat Juror 29743 any differently than other jurors.

“I think it’s something we canvass and we treat her the way we treat any other juror who has a health issue,” Goldstein said. The next day, after Juror 29743 entered the courtroom with her service dog, the judge asked her how she would “deal” with all the photos in the case.

“It would be through description … I cannot see them,” the woman, who works in human resources, told Goldstein.

“OK, all right, so if they are described – you can absorb what’s in them?” the judge asked. She said yes.

The jury selection process continued in the normal course with two already selected jurors, designated as “triers,” deciding whether or not she was an acceptable pick.

Juror 29743 said she had not heard about the case involving a man charged with impaired driving causing death on April 23, 2016, near Jane St. and Humberview Blvd. She also indicated she could consider the evidence without prejudice or bias after being told the accused was a visible minority and Muslim. Nevertheless, the triers immediately rejected her.

Goldstein, however, wasn’t satisfied. He told the triers he was going to reread their instructions and asked them to consult each other again. The test to decide is if a juror would approach jury duty with an open mind and decide the case based solely on the evidence and his legal instructions, the judge told them.

This time, the triers found Juror 29743 acceptable while counsel on both sides said they were “content” with the choice. After a few days of deliberations, the jury returned to court with a guilty verdict. The Star’s attempts to speak to Juror 29743 were unsuccessful.

Lawyer David Lepofsky, a retired Crown attorney who is blind and was not involved in the case, said having a blind juror not only makes the legal system more representative of society, it makes lawyers more effective.

There’s a lot of stuff that goes on in a courtroom that is visual and needs to be explained for the transcript, or audio recording, so having a blind juror will help ensure that happens, “so you get a better record, and it’s better for everybody,” Lepofksy said.

But there are some exceptions where a visually impaired juror might have to be excluded, he added. If, for example, the guilt or innocence of an accused is entirely based on whether a jury believes an accused looks like an assailant captured in a surveillance video.

Lepofksy, now a visiting professor at o University’s Osgoode Hall law school, said traditionally, appeal courts said trial judges were in a superior position to assess the credibility of witnesses, because they, unlike appeal judges, can access demeanour.

That view has evolved, and now appeal courts are increasingly warning “it’s wrong to over emphasize visual demeanour when assessing credibility.” He uses himself as an example to explain how everyone has different ways of doing that.

“Sighted people use eyes. I listen to a voice … and the whole idea of a jury is it’s a bunch of different people … pooling their different ways of assessing credibility and then voting as a group. Well, who’s to say visual is the only way to do it,” he said.

“Those of us who experience the world non visually, have our own experience too.”

While jurors don’t have to be statistically representative of society, there is an expectation that they bring to the courtroom their own life experience, “drawn from different parts of the community, and they pool to form a collective assessment, a very difficult assessment, who to believe about what happened.”



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