After the Federal Election, New Opportunities for People with Disabilities in Canada and a Pressing Need for the Media to Take a Hard Look at the Short Shrift It Too Often Gave Disability Issues


Accessibility for Ontarians with Disabilities Act Alliance Update

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

Web: www.aodaalliance.org

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After the Federal Election, New Opportunities for People with Disabilities in Canada and a Pressing Need for the Media to Take a Hard Look at the Short Shrift It Too Often Gave Disability Issues

September 21, 2021

1. Canada’s Media Must Take a Long Hard Look at Its Troubling Treatment of Disability Election Issues

We can be proud that we and the disability community managed to get more media coverage of at least some of this election’s disability issues than we have ever achieved in the past. As discussed further below, these issues got nowhere near the attention they deserve. However, the media coverage of them in the 2015 and 2019 federal elections was even worse. Very slowly we are making progress.

Canada’s media now needs to take a long and hard look at its troubling approach to disability issues, especially during an election. Six million people with disabilities in Canada matter and deserve better.

Some news outlets did not cover disability issues at all, as far as we have been able to tell. CBC gave the issue some coverage, but only over the past few days before the election.

For example, it was not until 2 pm on Sunday, September 19, 2021, the last day before the election, that CBC posted a specific report comparing the platforms of the parties on disability issues. We set that story out below. By that time, some six million voters had voted by mail or at advance polls. If it was newsworthy then, it was equally newsworthy weeks earlier.

A stunning illustration of the short shrift some media gave disability election issues concerns the Toronto Star and Globe and Mail. On September 14, 2021, both newspapers commendably printed a Canadian Press report on the fact that the mail-in ballot was inaccessible for voters with vision loss. However, the original CP story included a passage on the fact that of all the major parties, only the NDP had responded to the AODA Alliance’s request for accessibility pledges. Yet both the Globe and the Star cut that important paragraph right out of that story. Here is the pivotal information that both the Star and Globe decided was not newsworthy enough for their readers:

” Lepofsky, who is the chair of the Accessibility for Ontarians with Disabilities Act Alliance, said his group sent a letter last month to all main federal parties asking for 12 commitments on accessibility, including one on accessibility of the electoral process.

“Only one leader has answered us. And that is (NDP Leader) Jagmeet Singh,” he said.

“We don’t support anyone or oppose anyone. We try to get the strongest commitments we can, but we have not even gotten an answer from (Liberal Leader) Justin Trudeau or (Conservative Leader) Erin O’Toole.””

Below, we set out the September 13, 2021 CP report in full published by the Chat News website, and the edited version that the Globe and Mail published.

We know of no reporter who pressed party leaders on their failure to answer our request for election commitments on accessibility.

Late in the campaign, a number of reporters who spoke to the AODA Alliance about disability issues in the election commented that this is an important story, and it is too bad they had not known of it earlier. Yet we sent several news releases to the media during the election campaign, as no doubt did other disability organizations.

2. Voting Barriers Must Go

Voting barriers impeding voters with disabilities were even worse in this election than in the past. Because of COVID-19, more voters wanted to resort to the mail-in ballot. Yet the mail-in ballot lacks accessibility for voters with disabilities like vision loss who cannot mark their own ballot in secret and verify their choice.

Moreover, the reduction in the number of polling stations per riding in this election meant further distances to travel and longer lineups for voters. This obviously generates more voting barriers for voters with disabilities, such as those facing public transit barriers, and those who lack the stamina to stay in a long lineup for a long time.

This was covered in Karlene Nation’s interview with AODA Alliance Chair David Lepofsky on voting day September 20, 2021 on Sauga Radio in Mississauga. Below we set out a September 20, 2021 article from CBC News that reported on long lineups, fewer polling stations, and barriers facing voters with disabilities.

That CBC report incorrectly states:

” Lepofsky said accessibility was not considered by Elections Canada at polling stations.”

What AODA Alliance Chair David Lepofsky had said is that Elections Canada does not have a record of ensuring accessibility for voters with disabilities at polling stations.

In its August 3, 2021 letter, the AODA Alliance asked the major parties to commit to election reform to make federal elections accessible for voters with disabilities. Only the NDP agreed to this or even replied.

 3. What’s Next on the Federal Front

For many, the election’s outcome is frustrating. For us disability advocates, it presents new opportunities. We always are ready to work with any and all parties in our spirit of non-partisanship.

In Canada’s new Parliament, we aim to urge the NDP to act on its commitments to us. Even though no other party answered our August 3, 2021 letter, seeking election pledges, we intend to ask Erin O’Toole to stand by the Conservative Party’s 2018 commitment in the House of Commons to strengthen the Accessible Canada Act, if elected. Stay tuned.

4. And It’s Time to Focus Again on Provincial Issues in Ontario

With the federal election behind us, we will now turn prime attention to accessibility battles on the provincial front. Will the new COVID-19 vaccine be disability-accessible? Is the return to school treating students with disabilities better than in the past? With the fourth COVID-19 wave upon us, will the Ford Government eliminate the disability discrimination that seriously infects the critical care triage protocol that has been embedded in Ontario hospitals since January? Here again, stay tuned!

MORE DETAILS

CBC News September 20, 2021

Originally posted at https://www.cbc.ca/news/canada/toronto/long-lines-polling-stations-toronto-1.6182540

 

GTA voters contend with long lines, missing voter lists as election day draws to a close

Many ridings had significantly fewer polling stations than last election

Voters at a University-Rosedale polling station on Monday. Some people reported it had been a busy, and at times frustrating day for voters in the city. (Evan Mitsui/CBC)

Some frustrated voters at polling stations across the Greater Toronto Area on Monday found themselves dealing with long queues as they attempted to cast their ballots.

Lines outside polling stations, which closed at 9:30 p.m. ET, were longer this year in some cases due to COVID-19 precautions, logistical errors in voter ID cards and lists and a greatly reduced number of polling stations for some ridings.

In some cases, long lines stretched well into the evening.

At a polling station in King-Vaughan, voters reported a lineup of more than two hours and very little parking.

Aaron Kaufman, who lives in the area, said he gave up trying to vote because the line was so long and he had trouble finding parking shortly before 8 p.m. He never got out of his car but rolled down his window. People on the sidewalk told him not to bother trying to vote, he said.

“It was more than a long lineup. It was absolutely ridiculous,” Kaufman said after the polls closed on Monday night.

“The lineup for the actual polling station went around a giant sportsplex, across the street, around another building, and down the off ramp to the 400 Highway.”

Staff Sgt. Dave Mitchell of York Regional Police said there was a surge of voters at a polling station at 601 Cityview Blvd. in the Teston Road and Highway 400 area near Canada’s Wonderland before 8 p.m.

An estimated 1,500 to 2,000 people tried to vote at that time, he said.

Mitchell said some people, in an effort to find parking, were getting out of their vehicles on the off ramp of Highway 400 at Teston Road and walking up on the ramp.

Kaufman said the experience left him angry. Not enough planning and thought went into the logistics of voting, he said.

“It’s unacceptable, to be honest in a country like ours, the organization around voting was so poor that people couldn’t even make their voice heard.”

King-Vaughan had 28 fewer polling locations than in 2019, which was a 62 per cent drop in locations.

Earlier Monday at the Bentway polling station for Spadina-Fort York, voters lined up for about an hour or more before they got in, but the balmy weather helped keep frustrations at bay.

“It’s fine, I was able to take some work calls in line, [it’s] not too bad. The weather’s pretty nice, been waiting for about an hour,” one voter at the Bentway polling station said.

“We’re all outside, so that makes me feel good. People are reasonable.”

A polling station at Oriole Park Public School, like many across Toronto, had long queues for most of the day, frustrating some voters.

Some ridings have fewer polling stations this year

It’s important to note that some electoral districts in the Greater Toronto Area have remarkably fewer polling stations than they did in the 2019 federal election.

Toronto Centre had 91 in 2019, and has 15 polling stations this year. Spadina-Fort York had 56, but has 15 today. Those are the two ridings with the largest decrease in polling stations at 84 per cent and 73 per cent fewer than the last election, respectively.

In York Region, Aurora-Oak Ridges-Richmond Hill went from 39 to 12, and in Peel Region, Brampton East and Mississauga-Malton are down to 12 and 15 stations from 26 and 31, respectively, in 2019.

Elections Canada website errors

 

Several people also reported being unable to locate their polling station on the Elections Canada website Monday.

“A message comes up saying they aren’t able to find my polling station,” Daniel Mustard said. “It then asks you to call a 1-800 number to speak to an agent, but when I did that the agency also can’t find the address.”

“I’m lucky as I have all day to figure this out and vote. Others who may not be as keen might give up at this point,” Mustard added.

Others who chose to vote by mail were experiencing similar frustrations. Barbara Allemeersch said she only received her ballot on Friday afternoon and was questioning whether her returned vote will be received in time. Mail-in votes had to be received by 6 p.m. Monday.

Elections Canada responded on Twitter to the numerous complaints and concerns of voters being unable to find their polling station.

“Please note that we are experiencing technical difficulties with the Voter Information Service application on our website,” the agency said in a tweet on Monday morning. “Please check your voter information card or call us at 1-800-463-6868 to find your assigned polling location.”

A couple of hours later that was followed by a tweet saying the online information system was back online.

Elderly, people with disabilities face obstacles

 

Meanwhile, advocates for seniors and people with disabilities also said they believe there could have been a drop in voter turnout in their communities this year due to accessibility issues and a lack of aid available due to the pandemic.

Laura Tamblyn Watts, the CEO of CanAge, a national seniors’ advocacy organization, said while Elections Canada had done as “much as possible” this year to ensure seniors were provided for at polling stations, “that doesn’t mean that seniors are able to get to polling stations easier.”

Many community and aid organizations, as well as political parties, were not offering seniors transport to polling stations this year due to the pandemic, she said. That, coupled with the fact that many seniors are reluctant to enter large group settings right now, will likely mean a drop in older voters this year, Tamblyn Watts said.

“Eighty per cent of all seniors vote in every election, but I think this year the barriers to voting are so significant that we will see a shift in voting patterns,” she said.

David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance, said it could be a similar story for his community.

Lepofsky, who is blind, said Canada had “never had properly accessible elections for Canadians with disabilities,” and this year was no exception.

“The private, secret ballot is a sacred thing. The ability to mark your own ballot in private and not to have to tell anyone else who you’ve voted for and to be able to verify that it’s been marked correctly is fundamental to a democracy and yet as a blind person, I don’t have that right in Canada,” he said.

Lepofsky said accessibility was not considered by Elections Canada at polling stations. While mail-in votes offered an alternative, many still relied on loved ones to fill out their ballots for them.

“If people have any disability that relates to marking your own ballet, if it’s a paper ballot, you’ve got a terrible choice: either go to a polling station where you face barriers or use a mail-in ballot where you face barriers.”

“For any number of people with disabilities in Canada we do not have barrier-free, accessible voting and we do not have a plan in place to get us there.”

With files from Ali Raza, Ashleigh Stewart, Muriel Draaisma and Chris Glover

CBC News September 19, 2021

Originally posted at https://www.cbc.ca/news/politics/ask-party-promises-people-with-disabilities-1.6180063

What the parties have promised for people with disabilities

CBC News Loaded

Politics

ASK CBC NEWS

What the main political parties are pledging to do for the disabilities community

Tyler Bloomfield

CBC News

Posted: Sep 19, 2021 2:00 PM ET |

A taxi cab loads a walker into a wheelchair accessible van cab in Vancouver. (Ben Nelms/CBC)

This story idea came from an audience member, like you, who got in touch with us. Send us your questions and story tips. We are listening: [email protected]

Advocates for Canadians with disabilities say they feel like their needs have not been a priority for the major political parties as campaigns draw to a close.

Priorities for millions of Canadians with disabilities ‘left out’ of election campaign, say advocates

​​That could leave just over 1 in 5 Canadians on the outside looking in. There are more than six million Canadians aged 15 and over who say they have a disability, according to Statistics Canada. And the actual numbers could be even higher.

Ask CBC News heard from some of those Canadians and family members of those Canadians. They wanted to know what specifically the major political parties are promising for people with disabilities.

What the parties are promising

It’s worth noting that each party has a number of different platform planks that may not be covered below, many of which would affect all Canadians, including people with disabilities. With this in mind, here’s what each of the parties’ platforms say explicitly about some of the issues important to the disability community.

Liberals

If re-elected, the Liberals promise to reintroduce a Disability Benefit Act that will create a direct monthly payment for low-income Canadians with disabilities and between the ages of 18 to 64. They say the new benefit will reduce disability poverty, by using the same approach they took with the Guaranteed Income Supplement and the Canada Child Benefit.

The Liberals say in the Disability Statement in their platform that they “have moved to a human rights-based approach to disability inclusion and are moving away from the medical and charity models, to a social model of disability and a focus on poverty reduction.”

They also point to the fact that during their time in office they have established Accessible Standards Canada, appointed Canada’s first minister responsible for disability inclusion. As well as making investments in disability-specific programs, including the Opportunities Fund, Enabling Accessibility Fund, the Ready, Willing & Able inclusive hiring program ​​and Canada Student Grants for people with disabilities.

A Liberal government also promises a “robust employment strategy for Canadians with disabilities,” focused on support for workers and employers to create “inclusive and welcoming workplaces.”

They also say they are in the process of consulting the disability community to implement a Disability Inclusion Action Plan.

Conservatives

The Conservatives promise to double the Disability Supplement in the Canada Workers Benefit to $1,500, from $713. They are also committing to ensuring that going to work never costs a disabled person money, saying they want to work with the provinces to be sure that programs are designed to “ensure that working always leaves someone further ahead.”

They say in their platform that they will boost the Enabling Accessibility Fund with an additional $80 million per year to provide incentives for small business and community projects to improve accessibility, grants and support for accessibility equipment that disabled Canadians need to work. They say that would be on top of “enhancements to existing programs that will get more disabled Canadians into the workforce.”

The Conservatives want to make it easier to qualify for the Disability Tax Credit (DTC) and the Registered Disability Savings Plan. Conservatives say their changes to the DTC will save a qualifying person with disabilities an average of $2,100 per year.

Conservative Leader Erin O’Toole breaks down part of his party’s plan to help Canadians with disabilities during a campaign stop in Edmonton. 1:06

NDP

 

The New Democrats promise to uphold the United Nations Convention on the Rights of Persons with Disabilities and to strengthen the Accessibility Act to empower all federal agencies to make and enforce accessibility standards in a timely manner.

For income security, the NDP says it wants to expand support programs to ensure Canadians living with a disability have a guaranteed livable income, and to work to deliver a new federal disability benefit “immediately.” The party says this benefit would come in at $2,200 per month.

In its platform, the party promises to extend Employment Insurance (EI) sickness benefits to 50 weeks of coverage, to allow workers with episodic disabilities to access benefits as needed and to expand employment programs to ensure quality job opportunities are available.

On the issue of accessible housing, the NDP says it will create “affordable, accessible housing in communities across the country.”

For people with disabilities, it’s also worth noting the NDP platform includes a publicly funded national pharmacare and dental care program, a national autism strategy and a commitment to restore door-to-door mail delivery.

Laura Beaudin, a student, single mother and disabled Canadian asks NDP Leader Jagmeet Singh about his plan to support people with disabilities during CBC The National’s Face to Face series. 1:11

Bloc Québécois

 

While there are no specific plans to specifically support people with disabilities laid out in the Bloc Québécois platform, some of its other policies might offer some relief to the community. For example, the Bloc has been vocal about wanting to establish its own standards for long-term care.

People’s Party of Canada

 

The people’s party of Canada doesn’t have much in their platform that pertains to people with disabilities, but it does offer some promises to veterans with disabilities.

It says it wants to “reinstate the fair disability pension as previously provided for by the Pension Act. The pension will apply retroactively to 2006 and lump sum payments received since then will be treated as advance payments.”

Green Party

 

A Green government promises to create a Canada Disabilities Act and to support a national equipment fund to provide accessibility tools to help persons with disabilities.

When it comes to accessible housing, the platform says the party will “invest in adaptable social housing to meet particular needs, with both rental and purchase options.”

The Greens say they are willing to work with the provinces on disability issues as well. They say they will provide federal health transfer payments to provinces and territories directed to rehabilitation for those who have become disabled. They also suggest their equipment fund could be a joint program with provinces, for the sake of “equal access and common standards.”

For income support for Canadians with disabilities, the Green Party wants to institute a guaranteed livable income to lift anyone living with disabilities out of poverty. They are also committed to enforcing the Employment Equity Act, converting the Disability Tax Credit (DTC) to a refundable credit and redesigning the Canada Pension Plan/Disability Benefit to incorporate the DTC definition of disability and permit employment.

The Globe and Mail September 14, 2021

News

Lawyer says lack of accessible, private voting options a violation of Charter

THE CANADIAN PRESS

OTTAWA

David Lepofsky was not able to mark his choice independently on the mail-in ballot Elections Canada sent to him because he is blind.

He opted to not vote in person with his wife because she has a serious immune limitation and they don’t want to risk being infected with COVID-19.

Mr. Lepofsky, who is a lawyer advocating for accessibility for disabled people, said the voting options available for blind people don’t allow them to cast their ballots privately.

He said the lack of accessible voting options is a violation of Section 15 of the Canadian Charter of Rights and Freedoms, which requires equal protection and benefit of the law to those living with mental or physical disabilities.

“This is just awful,” he said in an interview with The Canadian Press. “The basic right we’re all supposed to enjoy is the right to mark our own ballot in private and to mark it independently, or ourselves, and to be able to verify this mark the way we want. And I currently don’t have that as a blind person at the federal level.”

Elections Canada responded to his complaint on Twitter on Sunday, saying the agency recognizes “the special ballot process is not ideal for an elector who is unable to mark their ballot independently.”

Mr. Lepofsky said the other option of voting in-person at a polling station also would not allow him to vote in private because an Elections Canada officer would have to read and verify his voting choice.

An Elections Canada spokesperson said those who provide assistance to voters must take oaths to protect the secrecy of those ballots.

“In the case of a poll worker, oaths are taken as part of the job when they provide assistance to an elector,” Matthew McKenna said in a statement.

Chat News Today September 13, 2021

Originally posted at https://chatnewstoday.ca/2021/09/13/blind-lawyer-says-lack-of-accessible-private-voting-options-violates-charter/

Blind lawyer says lack of accessible, private voting options violates Charter

Maan Alhmidi

The Canadian Press

SEPTEMBER 13, 2021 01:31 PM

A mail-in voting package that voters will receive if requested is seen in Calgary, Alta

OTTAWA — David Lepofsky was not able to mark his choice independently on the mail-in ballot Elections Canada sent to him because he is blind.

He opted to not vote in person with his wife because she has a serious immune limitation and they don’t want to risk being infected with COVID-19.

Lepofsky, who is a lawyer advocating for accessibility for disabled people, said the voting options available for blind people don’t allow them to cast their ballots privately.

He said the lack of accessible voting options is a violation of section 15 of the Canadian Charter of Rights and Freedoms, which requires equal protection and benefit of the law to those living with mental or physical disabilities.

“This is just awful,” he said in an interview with The Canadian Press.

“The basic right we’re all supposed to enjoy is the right to mark our own ballot in private and to mark it independently, or ourselves, and to be able to verify this mark the way we want. And I currently don’t have that as a blind person at the federal level.”

Elections Canada responded to his complaint on Twitter on Sunday saying the agency recognizes “the special ballot process is not ideal for an elector who is unable to mark their ballot independently.”

Lepofsky said describing the situation as being “not ideal” is an “offensive understatement” because the mail-in ballots are not accessible.

He said the other option of voting in-person at a polling station also would not allow him to vote in private because an Elections Canada officer would have to read and verify his voting choice.

An Elections Canada spokesperson said those who provide assistance to voters must take oaths to protect the secrecy of those ballots.

“In the case of a poll worker, oaths are taken as part of the job when they provide assistance to an elector,” Matthew McKenna said in a statement.

According to Statistics Canada, about three per cent of Canadians aged 15 years and older, or about 750,000 people, have a seeing disability that limits their daily activities and 5.8 per cent of this group are legally blind.

Lepofsky, who is the chair of the Accessibility for Ontarians with Disabilities Act Alliance, said his group sent a letter last month to all main federal parties asking for 12 commitments on accessibility, including one on accessibility of the electoral process.

“Only one leader has answered us. And that is (NDP Leader) Jagmeet Singh,” he said.

“We don’t support anyone or oppose anyone. We try to get the strongest commitments we can, but we have not even gotten an answer from (Liberal Leader) Justin Trudeau or (Conservative Leader) Erin O’Toole.”

He said there should be voting options at the federal level for people with disabilities that allow them to vote without needing help from anyone. He said voting by phone through an automated system can be a good option.

“In New Zealand, they have a phone-in ballot which is not internet-connected. That’s available for voters with vision loss. There are different options around the world but we are lagging way behind,” he said.

“We’re in the dark ages.”

Last year, Elections BC provided a telephone voting option for voters who are unable to vote independently, including people who have vision loss, those who have a disability or an underlying health condition that prevents them from voting independently and those who were self-isolating during the last week of the campaign and unable to vote by mail.

McKenna said introducing other voting options requires a law change.

“Changes to the way Canadians vote, including telephone voting, would in almost all cases require authorization from Parliament, typically in the form of legislative change,” he said.

“When assessing new voting processes or services, we undertake significant planning and testing to ensure that the new option is accessible, and that the confidentiality, secrecy, reliability and integrity of the vote are preserved.”

Mr. Lepofsky said there should be voting options at the federal level for people with disabilities that allow them to vote without needing help from anyone. He said voting by phone through an automated system can be a good option.

“In New Zealand, they have a phone-in ballot which is not internet-connected. That’s available for voters with vision loss. There are different options around the world but we are lagging way behind,” he said.

“We’re in the dark ages.”



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Just-Revealed Previously Secret Recommendations for Rationing Critical Medical Care in Ontario that the Ford Government is Considering Are Frightening for People with Disabilities


ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE

NEWS RELEASE – FOR IMMEDIATE RELEASE

Just-Revealed Previously Secret Recommendations for Rationing Critical Medical Care in Ontario that the Ford Government is Considering Are Frightening for People with Disabilities

December 21, 2020 Toronto: Could it soon be that if COVID-19 overwhelms Ontario hospitals, doctors could be told to decide to select some critical care patients to be taken off life-saving critical care that the patients are receiving, still need and want, on the ground that these services must be rationed and given to some other patients? Could a patient who objects to critical care being withdrawn from them be denied a right of appeal to an independent court or tribunal, even though their life is endangered? Could the health professionals making such decisions be insulated from any liability for their actions?

Despite excitement over new vaccines, frightening unreported new details have emerged that would allow all of this to happen, if the record-breaking surge in COVID-19 cases requires hospitals to ration or “triage” life-saving critical care services and beds. The Ford Government is considering a recommendation, made public on the AODA Alliance website, to direct doctors to remove life-saving critical care from some patients already in intensive care who don’t consent to this, if triage becomes necessary. This is even worse than rationing scarce unfilled critical care beds when more patients need them than there are available services.

“Ford’s Government hasn’t shown it has legislative authority to take the drastic, highly-objectionable actions that it is considering,” said David Lepofsky, Chair of the non-partisan AODA Alliance that allies with other disability advocates to protect patients with disabilities against discrimination if triage becomes necessary. “Triage recommendations that Ford’s Government is considering just came to light in the past days, and only because disability advocates campaigned for three months to get the Government to reveal those secret recommendations.”

In those newly revealed September 11, 2020 recommendations, the Government’s external advisory Bioethics Table commendably called on the Government to rescind the Government’s controversial earlier March 28, 2020 critical triage protocol that it had sent Ontario hospitals last spring, because that protocol discriminated against patients based on their disabilities – a concern disability advocates have pressed since April. But last Thursday, at a rushed roundtable that the Ontario Human Rights Commission held with disability, racialized and Indigenous communities’ representatives, those community representatives said the newly revealed triage recommendations, while an improvement, also have numerous human rights problems, even though the recommendations say that human rights should be respected.

These new triage recommendations would give patients, whose lives are in jeopardy, no appeal beyond the health care system (e.g., to an independent tribunal or court). They would insulate health care professionals against liability for refusing or withdrawing life-saving critical care.

On October 29, 2020, the Government, under pressure from people with disabilities and seniors, belatedly rescinded its discriminatory March 28, 2020 triage protocol, but put nothing in place to fill the vacuum. The time when critical care triage may be needed is rapidly getting closer. Health Minister Christine Elliott hasn’t answered any of the six successive AODA Alliance letters to her extensively detailing our concerns.

At last Thursday’s roundtable, a Government representative spoke up for the first time, revealing more disturbing news. A member of the Ford Government’s internal “Critical Care Command Table” responded to feedback at the roundtable, saying that a new approach to triage, addressing human rights concerns raised at the roundtable (with which he seemed to find merit), would have to wait until after this pandemic is over.

“That’s like saying we can be given an umbrella only after the rain has stopped. After months of the Government delaying, refusing to talk to us, and hiding behind its external advisory Bioethics Table for months, we cannot accept that it is now too late to ensure that critical care triage, if necessary, cannot be done without disability discrimination,” said Lepofsky. “We need the Ford Government to speak directly to us, and to obey the Ontario Human Rights Code and Charter of Rights.”

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

For more background on this issue, check out:

  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol, finally revealed days ago.
  2. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
  3. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, its December 15, 2020 letter and its December 17, 2020 letter to Health Minister Christine Elliott.
  4. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  5. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  6. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.
  7. The AODA Alliance website’s health care 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.



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Yesterday’s Roundtable on Critical Care Triage during the COVID-19 Pandemic, Hosted by the Ontario Human Rights Commission, Leads the AODA Alliance to Again Write Health Minister Christine Elliott to Raise Important New Issues


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/

Yesterday’s Roundtable on Critical Care Triage during the COVID-19 Pandemic, Hosted by the Ontario Human Rights Commission, Leads the AODA Alliance to Again Write Health Minister Christine Elliott to Raise Important New Issues

December 18, 2020

SUMMARY

Yesterday, the AODA Alliance joined the ARCH Disability Law Centre and a number of other advocates from Ontario’s disability, racialized and Indigenous communities, all invited by the Ontario Human Rights Commission to a virtual roundtable discussion. It focused on the September 11, 2020 draft critical medical care triage protocol that was finally made public a week earlier. We have campaigned for three months to get that document made public.

Given the number of participants, we could only scratch the surface on this life-and-death issue during this two-hour roundtable. The painful fact that that day, Ontario had another record-breaking number of new COVID-19 infections made this discussion especially urgent and long-overdue.

A number of new important issues were identified at this roundtable by a spectrum of participants. All were in strong agreement on a range of concerns. The AODA Alliance’s concerns were echoed or endorsed by a number of participants.

Some of the key points which the AODA Alliance raised are spelled out in the newest letter to Ontario Health Minister Christine Elliot from the AODA Alliance, dated December 17, 2020 and set out below. We hope that the Minister will this time respond to our letter. The Ford Government has not answered any of our earlier letters to her on this topic.

Present to receive feedback at the roundtable were representatives from the Ontario Human Rights Commission and the Ontario-Government’s external Bioethics Table. As well, there were some representatives from the Ford Government, including from the Health Minister’s office, from Ontario Health, and from the Government’s internal Critical Care Command Centre. We asked to be sent the names and contact information for these provincial officials and are waiting to hear back. We also asked to be sent all the information on the Bioethics Table’s September 11, 2020 draft critical care triage protocol that the Government has sent to hospitals. No one spoke up to agree to send this to us.

This entire triage issue remains in flux. We will keep you posted. With COVID-19 infections rising and hospitals getting filled to capacity, we fear that triage may be taking place right now.

Send your feedback to us at [email protected].

For more background on this issue, check out:

  1. The Government’s external advisory Bioethics Table’s September 11, 2020 draft critical care triage protocol.
  2. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government-appointed Bioethics Table.
  3. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter, its November 9, 2020 letter, its December 7, 2020 letter, and its December 15, 2020 letter to Health Minister Christine Elliott.
  4. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  5. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  6. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol.
  7. The AODA Alliance website’s health care 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

December 17, 2020 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

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/

December 17, 2020

To: The Hon. Christine Elliott, Minister of Health

Via email: [email protected]

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

Re: Ontario Government’s Protocol for Medical Triage of Life-Saving Critical Care in the Event Hospitals Cannot Handle All COVID-19 Cases

We urgently write to follow up on our five unanswered letters to you dated September 25, November 2, November 9, December 7 and December 15, 2020. These ask about the Ford Government’s plans for deciding which patients would be refused life-saving critical medical care that they need, if the record-breaking surge in COVID-19 cases overloads Ontario hospitals and requires rationing or “triage” of critical care beds and services.

This morning, we took part in a two-hour virtual roundtable, convened by the Ontario Human Rights Commission and the Government-appointed COVID-19 Bioethics Table. It was convened on very short notice to gather feedback on the Bioethics Table’s recently-released September 11, 2020 proposed critical care triage protocol.

These are among the many urgent points that arose at or from the discussion at that roundtable:

  1. None of us invited to that roundtable from the disability, racialized or Indigenous communities had had anywhere near the time we needed to properly review the detailed 36-page September 11, 2020 draft critical care triage protocol. Such virtual face-to-face consultations are vital but must be preceded by enough time to prepare. Sending in written submissions is no substitute. Don’t now consider that the consultation check box can be ticked.
  1. No one has shown us that anything in the proposed triage protocol is authorized by law. We have raised this concern time and again. The most interesting and thorough discussion with the Bioethics Table on how triage should be carried out is utterly irrelevant if the protocol, whatever it says, is not properly mandated by law – a law that passes constitutional muster.

For example, it will be shocking and deeply disturbing to many if not most to learn the draft triage protocol would have doctors under certain triage circumstances actually withdraw critical care services from a critical care patient who needs those services and who is in the middle of receiving those insured medical services. How can a mere memo from some bureaucrat in the Ministry of Health or from Ontario Health purport to authorize that, if there is no legislative authority for it? Couldn’t that give rise to possible criminal responsibility, for those taking such action? We don’t believe that a provincial memo overrides the Criminal Code of Canada.

  1. It appeared that none of us, from whom input was being sought, could understand from this 36-page document exactly how a doctor is to specifically decide who will be refused critical care under the September 11, 2020 draft triage protocol. We cannot give the kind of detailed input that is needed without that being clarified. We wrote the Bioethics Table co-chairs about this in advance of this meeting. No such clarification was provided.
  1. An extremely worrisome revelation was made in the only statement we have heard from anyone within the Government’s internal critical care triage infrastructure. Dr. Andrew Baker identified himself as a member of the Ministry of Health’s Critical Care Command Centre. Right near the end of the roundtable, responding to feedback at the roundtable, Dr. Baker stated that doctors value life inherently, and that at present, doctors “default to life years, when we have finite resources. One principle, life years.”

What we take from this is that at present, such triage decisions would be made based on “life years saved.” He went on to say that a new approach to triage, embodying the concerns raised at the roundtable (with which he seemed to find real merit), would in effect have to wait for a future time. That would have to be after this pandemic is over.

That statement in effect summarily and categorically dismissed all the serious human rights and constitutional concerns we had raised for two hours as not ready to be implemented during this pandemic, even if critical care triage becomes necessary.

We strongly disagree. The Government cannot give up on this now. The thought that we might not have time to put these principles into action now is especially cruel, since our community has been pleading with your Government since early April to directly consult us on this issue.

Dr. Baker’s endorsement of using “life years saved” points to an approach riddled with discrimination because of age, disability, or both. Minister, Dr. Baker’s single statement crystalizes so many of our concerns. It reveals that whatever is written in this or other triage protocols won’t matter at the front lines, and that vulnerable seniors and people with disabilities, among others, now have a great deal to worry about.

This requires you to immediately take over personal leadership on this issue, and to let our vulnerable communities speak directly to you and your senior officials.

  1. From what we can determine, the September 11, 2020 draft triage protocol would have a doctor or doctors assess, based on an individual clinical assessment, if a patient, needing critical care, has less than 12 months to live. As I pointed out at the roundtable, Dr. James Downar, of the Bioethics Table, has previously told us that when doctors assess whether a patient has less than 3 months to live in order to decide if that patient should be allowed to go into palliative care, doctors “lie”. By this, we understand him to mean that they try to make a result-oriented assessment to get palliative resources for their patient.

If doctors routinely lie for assessing a patient’s likely mortality within three months, we have every reason to fear that they could do the same when the figure is changed from three months to twelve months, in connection with critical care triage decisions. We realize that there is a difference between admission to palliative care on the one hand, and admission to critical care on the other. However, for current purposes, that difference does not make a difference.

  1. The September 11, 2020 draft critical care triage protocol, like the two earlier versions that the Bioethics Table produced this year, give these life-and-death decisions over to doctors. As addressed in our next point, we think this needs reconsideration. It provides no appeal from those doctors to an outside independent body, such as a court or the Consent and Capacity Board. Such an appeal is needed. Moreover, it proposes to immunize doctors and other health care professionals making these life-and-death decisions from any accountability. It states that the protocol should:

“4.       Ensure liability protection for all those who would be involved in implementing the Proposed Framework (e.g., physicians, clinical teams, Triage Team members, Appeals Committee members, implementation planners, etc.), including an Emergency Order related to any aspect requiring a deviation from the Health Care Consent Act.”

It is certainly questionable whether that can be done. We believe it is beyond question that it should not be done.

  1. As we also emphasized at the roundtable, it is not clear to us that these purely medical triage criteria are the way for Ontario to go. Other non-medical triage criteria outside the preserve of doctors are worth considering.

Minister, please talk to us. Have your Ministry officials talk to us. Don’t wait until it is too late.

Stay safe.

Sincerely,

David Lepofsky, CM, O. Ont

Chair, Accessibility for Ontarians with Disabilities Act Alliance

Enclosure: December 11, 2020 email from AODA Alliance Chair David Lepofsky to Jennifer Gibson, Bioethics Table co-chair

cc:

Premier Doug Ford [email protected]

Helen Angus, Deputy Minister of Health [email protected]

Raymond Cho, Minister of Seniors and Accessibility [email protected]

Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]

Todd Smith, Minister of Children, Community and Social Services [email protected]

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]

Jennifer Gibson, Co-Chair, Bioethics Table [email protected]

Dianne Godkin, Co-Chair, Bioethics Table [email protected]



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Send Us Your Feedback on the Information and Communication Standards Development Committee’s Final Recommendations on What is Needed to Strengthen the 2011 Information and Communication Accessibility Standard, Enacted under Ontario’s Disabilities Act


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/

Send Us Your Feedback on the Information and Communication Standards Development Committee‘s Final Recommendations on What is Needed to Strengthen the 2011 Information and Communication Accessibility Standard, Enacted under Ontario’s Disabilities Act

December 17, 2020

            SUMMARY

Over the past weeks, there has been a ton of breaking news on different fronts of our never-ending campaign for accessibility for people with disabilities. Before we shut down for the holidays, we’re going to try to catch you up on some that we have not earlier been able to address.

On or around November 16, 2020, the Ford Government made public the final recommendations of the Information and Communication Standards Development Committee. We set out those final recommendations below.

What is this about and what does it mean for 2.6 million Ontarians with disabilities? The Accessibility for Ontarians with Disabilities Act (AODA) requires the Government to lead Ontario to become fully accessible by 2025. The Government must enact and effectively enforce all the accessibility standards needed to ensure that the AODA’s goal is achieved. An accessibility standard is an enforceable and binding provincial regulation that spells out what an obligated organization must do to prevent and remove accessibility barriers and that sets timelines for action.

Almost ten years ago, back in June 2011, the Ontario Government enacted the Integrated Accessibility Standards Regulation (IASR) under the AODA. Among other things, that regulation includes a series of provisions requiring the accessibility of information and communication. Those provisions are often called the 2011 Information and Communication Accessibility Standard.

Under the AODA, the Ontario Government is required to appoint a Standards Development Committee five years or less after an accessibility standard is enacted, to review it and see if it needs to be improved. Therefore, in 2016, the Ontario Government appointed the Information and Communication Standards Development Committee to review the 2011 Information and Communication Accessibility Standard, and to recommend any revisions needed so that this accessibility standard would best achieve the AODA’s purposes.

After meeting over a period of months, the Information and Communication Standards Development Committee came up with a package of draft recommendations on how to strengthen the 2011 Information and Communication Accessibility Standard. On July 24, 2019, the Ontario Government posted those draft recommendations online and invited public input on them. The Ontario Government was required to do this under the AODA.

The public then had a few weeks to give feedback to the Standards Development Committee on its draft recommendations. For example, the AODA Alliance submitted a 73 page brief to the Information and Communication Standards Development Committee on November 25, 2019. Our brief commended much of what was in the Committee’s draft recommendations. It also offered extensive feedback and recommendations to the Information and Communication Standards Development Committee.

That Standards Development Committee was then required to meet again to consider all the feedback it received from the public. It did so. Among other things, on January 22, 2020, AODA Alliance Chair David Lepofsky was given an opportunity to present in person for 30 minutes to the Committee.

The Information and Communication Standards Development Committee then finalized its package of recommendations for revisions to the Information and Communication Accessibility Standard. On February 28, 2020, the Standards Development Committee submitted those recommendations to the Ford Government. The Government is required to make those recommendations public, so the public can give the Government feedback on them. For no discernible or justifiable reason, the Ford Government held off making the Standards Development Committee’s final recommendations public for eight months.

What comes next? Under the AODA, the Government can enact revisions to the Information and Communication Accessibility Standard. It can make all, some or none of the changes that the Information and Communication Standards Development Committee recommended. It can also enact revisions beyond those that the Standards Development Committee recommended.

We and the public therefore now have an opportunity to take our case for revisions directly to the Ford Government. We therefore invite your feedback on the Information and Communication Standards Development Committee‘s final recommendations, set out below. Given the incredible number of issues we are now addressing, we have not yet had a chance to analyze the Standards Development Committee’s final report and recommendations. You can always send us your thoughts by emailing us at [email protected]

Under the AODA, the Government is required to post the Standards Development Committee’s final recommendations for 45 days. Sadly, the Government under successive premiers has at times followed an irrational practice of taking down those recommendations after the minimum time period that the AODA requires them to be posted. Nothing would stop the Government from leaving them up and visible to all on the internet on a permanent basis. That would provide greater openness and accountability for the Government and the AODA itself.

Despite the Government’s past practice in this area, the AODA Alliance will continue its practice of leaving such reports and recommendations permanently posted on our website.

If the Government decides to make revisions to the Information and Communication Accessibility Standard, the AODA requires the Government to post the wording of the draft regulation it proposes to enact, for public comment. We will let you know if the Government does this.

We offer two examples here of the need for prompt action in this area. First, as was pointed out in the December 8, 2020 panel on accessible education on The Agenda with Steve Paikin, TVO’s online educational materials for school students doing distance learning are still replete with accessibility problems. TVO has announced no detailed plan of action to fix these. TVO is owned and operated by the Ontario Government.

Second, just weeks ago, the Ford Government’s Accessibility Minister issued an invitation in an inaccessible broadcast email to an upcoming event where he was to make an announcement on accessibility. The Government apologized for this. As it turned out, nothing new was announced at the event in question.

The Ford Government has repeatedly claimed to be “leading by example” on accessibility. These incidents are an awful example by which Ontarians should not be led in the area of accessible information and communication.

So far, the Ford Government has been very lethargic in fulfilling its duties to develop accessibility standards under the AODA. For example:

  1. In the spring of 2018, weeks before the 2018 Ontario provincial election, the Transportation Standards Development Committee submitted to the Government its final report proposing revisions needed to the 2011 Transportation Accessibility Standard. That has languished on the Ford Government’s desk since it took office in June 2018, two and a half years ago. Since then, the Government has not invited any public feedback on this, and has announced no plans in this area. Ontario thus continues to have a public transit system replete with disability barriers.
  1. As noted above, the Government sat on the final report of the Information and Communication Standards Development Committee for over a half a year before fulfilling its duty to make that report public, for public input.
  1. The Government still has not fulfilled its duty to appoint a Standards Development Committee to review the 2012 Public Spaces Accessibility Standard. The Government was required to appoint that Standards Development Committee fully three years ago. The current Government is on the hook for two and a half of the three years of AODA contravention.
  1. On taking office, the Ford Government left five existing Standards Development Committees frozen and in limbo for months, before allowing them to get back to fulfil their mandatory work. We had to campaign for months to get them unfrozen. That included, among others, the Information and Communication Standards Development Committee.

For more information on our multi-year campaign to make information and communication fully accessible to people with disabilities, visit the AODA Alliance’s information and communication web page.

To see what we asked the Information and Communication Standards Development Committee to recommend to the Ford Government, check out the AODA Alliance’s November 25, 2019 brief to the Information and Communication Standards Development Committee.

There have now been an unbelievable 686 days 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 still announced no comprehensive plan of new action to implement that blistering report, including its strong recommendations regarding the development of strong accessibility standards. That delay makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, addressed in a new online video we recently unveiled.

            MORE DETAILS

Information and Communication Standards Development Committee Chair’s letter to the minister

February 28, 2020

The Honourable Raymond Cho
Minister for Seniors and Accessibility
777 Bay Street
5th Floor, Toronto, Ontario
M7A 1S5

Dear Minister,

The Information and Communications Standards Development Committee has completed our legislative review of the Information and Communications Standards. As chair and on behalf of the committee, I am pleased to submit the final recommendations report for the proposed accessibility standard for your consideration.

In meeting the provisions of the legislative review, as set out in the Accessibility for Ontarians with Disabilities Act, we re-examined the long-term objective of the Information and Communications Standards and each of the requirements. Our review included all of the Standard’s sections, the focus areas identified in the terms of reference, and additional items raised by committee members well as a limited amount of external feedback.

As you wisely requested, we considered how to make it easier for businesses and the public sector to achieve accessibility in all of the recommendations.

The report is structured in two phases, stemming from an early and clear consensus that the current structure of standards is not keeping pace with technology. Phase 1 contains 32 recommendations that the committee is proposing as immediate solutions to identified gaps and unintended barriers in the current standards. Phase 2 proposes a new model to transform and modernize the regulatory approach to accessibility in Ontario. It could be applied first to the Information and Communications Standards and would allow organizations to continuously adapt and improve their websites, web content and technology up to and beyond 2025. If the model proves successful, the committee’s intent is that government explore applying it to other accessibility standards in the future. Phase 2 is a proposal for culture change in Ontario.

Our committee had extensive discussions in reviewing the path to a province where people with disabilities be able to participate fully and equitably in the creation and use of information and communication. As chair, and in-line with The Honourable David Onley’s recent report, I assess that relying on the AODA and its associated Standards will never achieve that objective. More is needed, and this report only begins to address those needs.

We considered public feedback and stakeholder presentations in finalizing our recommendations. We have reflected this in the report. We thank the individuals, and organizations who provided feedback on the initial recommendations report.

As chair, and past chair of Accessibility Standards Advisory Committee, it is prudent for me to comment on the effectiveness of the Standards development process. In short, the Standard development process is broken, primarily for the reasons listed below:

  1. Research and feedback: Current sources of information on the experiences of people with disabilities and obligated organizations are too narrow and heavily biased by lobby groups. The voices of individual people with disabilities and “obligated organizations” must be sought out broadly and intentionally. The few sources that are available are gathered at the end of the process – these ongoing insights must seed the process, not merely confirm its outcome.
  2. Bounded by current standards: Understanding that legislation requires an explicit review (as is current interpretation), the process needs to be more responsive to on-the-ground realities that may or may not be covered by legislation.
  3. Timing and permanency: These reviews are by nature, periodic. Instead, permanent bodies, staffed by full time professional appointees must be the norm. These appointees must be paid a significant salary to attract the best and brightest in Ontario, or more boldly, globally. These professionals are better equipped to capture and react to insights gathered from a vastly to-be-improved research process.
  4. Encourage risk and failure: Disability regulations around the world have failed to deliver on their promise. Acknowledge that publicly. Encourage, and fund, innovation that ensures Ontario is a place where people with disabilities be able to participate fully and equitably in all aspects of the economy and society. Notice that mere accessibility is not the benchmark.

It has been an honour to chair this committee and work alongside such dedicated members who exude professionalism and are comfortable with taking risk.

We look forward to the Minister’s response on these final recommendations.

Sincerely,
Rich Donovan
Chair of Information and Communications Standards Development Committee

Final Report of the Information and Communication Standards Development Committee

 

Originally posted at https://www.ontario.ca/page/copyright-information-c-queens-printer-ontario

 

Introduction

Recognizing the history of discrimination against persons with disabilities in Ontario, the purpose of this act is to benefit all Ontarians by developing, implementing and enforcing accessibility standards in order to achieve accessibility for Ontarians with disabilities with respect to goods, services, facilities, accommodation, employment, buildings, structures and premises on or before January 1, 2025; and providing for the involvement of persons with disabilities, of the Government of Ontario and of representatives of industries and of various sectors of the economy in the development of the accessibility standards.

Accessibility for Ontarians with Disabilities Act, 2005

Accessibility for Ontarians with Disabilities Act, 2005

The act became law in 2005. Its stated goal is the creation of an accessible Ontario by 2025, through the development, implementation and enforcement of accessibility standards that apply to the public, private and not-for-profit sectors.

With the act, Ontario became the first province in Canada and one of the first places in the world to bring in a specific law establishing a goal and timeframe for accessibility. It was also the first place to legally require accessibility reporting, and one of the first to establish accessibility standards so that people with disabilities have more opportunities to participate in everyday life.

Accessibility standards

The accessibility standards under the act are laws that businesses and organizations with one or more employees in Ontario must follow so they can identify, remove and prevent barriers faced by people with disabilities. These standards are part of the act’s Integrated Accessibility Standards Regulation. Currently, there are five accessibility standards, and they apply to key areas of day-to-day life for Ontarians. These are:

  • Information and Communications
  • Employment
  • Transportation
  • Design of Public Spaces
  • Customer Service

Standards review process

The act requires that each of Ontario’s accessibility standards be reviewed within five years of becoming law, to determine whether they are working as intended and to allow for changes to be made if they are required. These reviews are carried out by Standards Development Committees. The act also requires that committees be comprised of representatives from industries or other organizations that are affected by the accessibility standards, government ministries with responsibilities relating to those industries and organizations and people with disabilities or their representatives.

As required by the act, the committee must:

  • re-examine the long-term objectives of the standards
  • if required, revise the measures, policies, practices and requirements to be implemented on or before January 1, 2025, as well as the timeframe for their implementation
  • develop initial proposed recommendations containing changes or additions that the committee considers advisable, and submit them for public comment
  • based on public feedback, make such changes to the proposed accessibility standards that it considers advisable, and submit those recommendations to the minister

This report presents the final recommendations for proposed accessibility standards by the Information and Communications Standards Development Committee.

Information and Communications Standards Development Committee

The committee was established in late 2016. The committee was originally composed of 23 members, however 3 resigned during the process. As of this final report, there were 20 members, 16 of these are voting members voting members. The remaining four members, who were non-voting, were drawn from ministries which have responsibilities relating to the sectors to which the standards apply. Nine of the voting members were people with disabilities or their representatives. All members, including those who resigned, are listed in appendix A of this report.

To begin its review, the committee was provided with stakeholder feedback from the Accessibility for Ontarians with Disabilities Division of the Ministry for Seniors and Accessibility (formerly the Accessibility Directorate of Ontario). This feedback was informed by incoming written correspondence, telephone calls, compliance-related activities and consultation with stakeholders.

Their first meeting—an orientation session—was held in March 2017. Through 2017 and into Winter 2018, the committee held several meetings to complete its initial recommendations. These initial recommendations were posted for public comment between July 24th, 2019 and October 18th, 2019. On January 22 and 23, 2020, the committee met one last time to finalize this report while taking into account public comments.

The committee’s deliberations benefitted from the diverse viewpoints and knowledge that members brought to the table. After each meeting, members sought feedback from their communities and networks to share at the following meeting. This input informed voting on recommended changes.

As noted above, this document sets out the committee’s final recommendations for proposed updated accessibility standards. As outlined by the act, the Minister shall decide whether to recommend to the Lieutenant Governor in Council that the proposed standard be adopted by regulation in whole, in part or with modifications.

Approach taken by committee

The standards deal with the way organizations create and share information and outline how they are to make information and communication accessible to people with disabilities. The standards require that accessible formats and communication supports be made available on request. They also cover such areas as emergency and public safety information, websites, feedback processes, as well as educational, training and library materials and resources and training for educators.

The committee’s discussions reflected a consensus that the current standards are not keeping pace with technology. There was mention that the standards are not always strong enough and are often too difficult to apply. The committee also discussed the fact that the standards are confusing and prevent innovation in accessible technology. Overall, committee members agreed that the standards need to be modernized and crafted to ensure they remain relevant in the future, as technology changes at an increasingly rapid pace.

To assist with developing this advice, the committee created the Digital Inclusion Technical Subcommittee. The subcommittee’s main task was to provide expert advice to the committee about section 14 of the regulation, which sets out the accessibility requirements for websites and web content. All members of the subcommittee are listed in appendix A of this report.

In addition, the subcommittee was asked to think about some very broad questions, including what accessibility means in today’s digital world, and whether the current regulatory system can deliver the desired outcomes.

Based on the subcommittee’s advice, the committee settled on both a short- and long-term approach to making information and communication accessible for people with disabilities. This report is divided into two parts or phases.

Phase 1 contains 32 recommendations that the committee is proposing as immediate solutions to identified gaps and unintended barriers in the current standards. Each of these recommendations contains:

  • an explanation of the issue
  • the specific language of the recommendation as voted on
  • an explanation of the intent and desired outcome of the recommendation
  • recommended timing for implementation of the revised requirement if applicable

Phase 2 proposes a new model to transform and modernize the regulatory approach to accessibility in Ontario. It could be applied first to the Information and Communications Standards and would allow organizations to continuously adapt and improve their websites, web content and technology up to and beyond 2025. If the model proves successful, the committee’s intent is that government explore applying it to other accessibility standards in the future. Phase 2 is, in effect, a proposal for culture change in Ontario. The committee recognizes that, given its potentially transformative nature, this phase may take more time to develop and implement.

The committee recognizes that due to the nature of the topic, complexity of technology, simple and plain language may not have been viewed as a priority at the beginning of the process. Based on the feedback we have received and the knowledge we have gained through this process, the committee recommends any further public communication of this report should available in a simple language version.

Phase 1

This section focuses on the Information and Communications Standards outlined in the Integrated Accessibility Standards Regulation. Recommendations in this section are listed according to the different sections under the standards.

It should be noted that throughout this report, reference is frequently made to obligated organizations. These are organizations that are expected to comply with requirements in the regulation. Obligated organizations include:

  • the Government of Ontario
  • the Legislative Assembly
  • designated public sector organizations
  • large organizations, private or not-for-profit, with 50 or more employees
  • small organizations, private or not-for-profit, with one to 49 employees

Some requirements do not apply to all these organizations. Small organizations, for example, are exempt from some requirements. This report will specify when this is the case. If it does not, the requirements being discussed may be assumed to apply to all the above obligated organizations.

Recommended long-term objective

While developing its specific recommendations, the committee continuously considered the long-term objective of the standards. The act requires all the Standards Development Committees to establish these long-term objectives, and the Information and Communications Standards Development Committee is required to re-examine the long-term objective.

The current long-term objective of the accessible Information and Communications Standards is:

That by 2025, all information and methods of communication to and from an individual will be designed to be accessible to people with disabilities consistent with human rights law, the French Language Services Act (1990) (where applicable) and inclusive design principles. The committee intends for the requirements to build upon the principle of providing accommodation to people with disabilities to preserve and enhance dignity and independence.

The committee believes that the objective above is too complicated, and recommends the following clear and simple objective instead:

That people with disabilities be able to participate fully and equitably in the creation and use of information and communication.

Part 1: Regulation in general or Sections 9 to 11

Recommendations in this section are related either to the regulation in general or to Sections 9–11 of the regulation.

Recommendation 1: Feedback requirements

Section 11 of the regulation relates to the feedback organizations receive from the public, and outlines accessibility requirements around the feedback process. The committee learned that organizations were confused about the fact that there are different requirements related to feedback located throughout the regulation. Specifically, section 11: Feedback of the Information and Communications Standards and Section 80.50: Feedback process required of the Customer Service Standards have some of the same requirements.

The committee proposes the following:

The feedback requirements in Sections 11 and 80.50 of the regulation should be combined and placed in the General Requirements section of the regulation, ensuring both the format requirements of section 11 and the specific requirement for a process in Section 80.50 about goods, services and facilities remain. In addition, the committee recommends that clear definitions of the terms “feedback” and “communication” be included.

Timeline: Immediate

The intent of this recommendation is to eliminate the confusion caused by having requirements for a feedback process dealt with in two different parts of the regulation. This change should not modify the obligations of organizations but simply make them clearer and easier to find and understand.

Recommendation 2: Usage of portable document format (PDF)

During a 2016 meeting of the Standing Committee on Finance and Economic Affairs, the standing committee discussed a proposal to ban PDFs from government use. This is because PDFs are often inaccessible. While the proposal was not approved, it was referred to this formal regulatory review process. The Information and Communications Standards Development Committee discussed the fact that PDFs are often inaccessible, and while it is possible to make them accessible, the expertise needed to make a fully accessible PDF is seldom present in obligated organizations. However, the committee concluded that while certain problems do exist with PDFs, banning them altogether is not the best solution, particularly since they work well when made properly accessible.

The committee proposes the following:

Government should not ban the use of PDFs for any obligated organization.

Timeline: N/A

The committee did discuss a number of alternative measures, including non-regulatory approaches such as increasing education for government employees on how to make PDFs accessible, but did not vote on the matter.

Recommendation 3: Final review of regulatory language

The Minister may accept in whole, in part or with modifications the committee’s recommendations once they are received. The committee recognizes that members are not usually involved in the decision-making process after its final advice is submitted. However, some recommendations for the standards are highly technical, and the committee is concerned about ensuring consistency in the interpretation of those recommendations. In particular, there is concern about technical aspects related to section 14: accessible websites and web content.

The committee proposes the following:

Government use the technical expertise of the Digital Inclusion Technical Subcommittee as a resource, as needed, to clarify intent and technical accuracy during the regulatory drafting stage related to section 14.

Timeline: N/A

The intent of this recommendation is to avoid any possible confusion regarding the intent of the committee’s recommendations and to ensure that the government can easily obtain clarification if confusion arises.

Recommendation 4: Products and product labels

The current regulation states that products and product labels are not required to be made accessible unless specifically mentioned in the standards. Stakeholders have expressed concern that a large number of goods remain inaccessible because of this exemption. The committee agreed that there should, at the very least, be a digital format available for all products and product labels where applicable. The problem is that both federal and provincial governments regulate in this area, and so making a recommendation solely at the provincial level would be ineffective.

In order to ensure a solution to this issue is coordinated between the federal and provincial jurisdictions, the committee proposes the following:

The Government of Ontario should meet with the Government of Canada to look for solutions to the problem of accessible products and product labels. These solutions may include clarifying jurisdictional authority over different products. In addition, it is recommended that Ontario meet with various industries to explore non-regulatory solutions to this issue. Medical labelling should be a priority for action.

Timeline: One year for Ontario and Canada to produce a report that sets a strategic direction on the recommendations above. If a report is not created by the governments of Ontario and Canada by this time, then the recommendation is that Ontario develop a strategy within one additional year to address this, including creating an expert committee.

The committee recognizes that the exemption of products and product labels is an accessibility barrier, but also recognizes that a solution to this problem needs to involve all levels of government that have authority over this area. The committee also recognizes that technology offers the potential for organizations to develop innovative solutions to this issue and would like the Government of Ontario to work with industries to encourage the development of non-regulatory solutions.

Part 2: section 12

The following recommendations relate to section 12 of the regulation, which requires organizations to provide accessible formats and communication supports for people with disabilities. The committee discussed this at length and have a number of recommendations regarding section 12 – Accessible formats and communication supports.

Recommendation 5: Determination of suitability

If a person with a disability asks an organization for an alternate format or communication support, that organization is required to consult with the requester about the request. The final decision on whether to provide the requested alternate format or communication support is with the organization. The committee noted that this is resulting in the provision of formats that do not meet the needs of people with disabilities.

The committee proposes the following:

Change regulation 12.(2) to state: “The obligated organization shall consult with the person making the request and gain agreement in determining the suitability of an accessible format or communication support.”

Timeline: Language to be changed immediately, and regulation to become effective six months after language change.

The intent of this recommendation is that the final decision on the suitability of an accessible format should not be left to the organization alone. Rather, both the organization and the person requesting an alternate format should work together to gain agreement on suitability. The committee recognizes that this may create an impasse, and this is partly what motivates recommendation 7 (to follow). Despite the potential for an impasse, the committee feels this recommendation will result in improved accessibility. The committee recognizes that with this change, organizations may need time to adjust their processes, so it is proposed that it be effective six months after the amended regulation is in force.

Recommendation 6: Timely manner

Section 12 of the regulation states that organizations must provide accessible formats in a ‘timely manner,’ considering the requester’s needs due to disability. Stakeholder feedback revealed that people with disabilities and organizations often do not agree on the definition of timely manner. Specifically, people with disabilities point out that organizations are only required to take the person’s needs ‘into account’ when deciding on what would be a timely manner.

The committee proposes the following:

Change the regulation to state that organizations must provide accessible formats in a mutually agreed upon timely manner which considers the circumstances of the requester, and the urgency of his or her request.

Timeline: Language to be changed immediately, and regulation to become effective six months after language change.

The idea is similar to the intent of recommendation 5, which is to ensure that important decisions that affect people with disabilities must be made with their participation. In this case, it would require that organizations and people with disabilities agree on what is meant by a timely manner. Again, the potential for disagreement is recognized, but the committee feels this recommendation will result in improved accessibility. As with Recommendation 6, the committee is proposing that this change become effective 6 months after the amended regulation is in force, to give organizations time to prepare and adjust.

Recommendation 7: Agreement between people with disabilities and organizations

Certain sections of the regulation require or provide for feedback processes allowing people with disabilities to make their needs and positions clear to organizations. Unfortunately, there is currently no mechanism to resolve disagreements when either party is unhappy with the result. Clearly, such a mechanism would be useful.

The committee proposes the following:

The issue of a lack of mechanism to address disagreement between organizations and people with disabilities in any section of the regulation should be referred to the Accessibility Standards Advisory Council.

Timeline: Referred to the council immediately following the submission of the final proposed recommendations. The council should develop a mechanism within one year.

The intent of this recommendation is for the council to investigate the creation of a mechanism to support the satisfaction of both people with disabilities and organizations, in relation to requirements under the act and regulation. The council is best positioned to examine this issue.

Recommendation 8: Harmonization of section 12

As was noted in recommendation 1, organizations are confused by multiple and often duplicate requirements throughout the regulation. Specifically in this case, section 12 of the Information and Communications Standards and section 80.51 of the Customer Service Standards create duplicate requirements for providing accessible formats.

The committee proposes the following:

Requirements for alternate formats and communication supports should be combined and moved to one place, in the general requirements section of the regulation. There should be no material change in the requirements, except for any other recommendations made by the committee regarding section 12. A reference to the combined section in the general requirements should be made whenever requirements for alternative formats and communication supports are mentioned in the regulation.

Timeline: Immediate

The intent of this recommendation is to clarify requirements and eliminate confusion by ensuring they are contained in one section of the regulation. The committee feels that moving the requirement for accessible formats into the general requirements section of the regulation would also make it clear that this requirement applies to all of the standards, and not just to Information and Communications. To be clear, the intent is not to weaken requirements in any way.

Recommendation 9: On-demand conversion ready formats

Currently, there is sometimes a delay when the government is asked to provide alternate formats of documents. The committee feels that technology has advanced to the point where there is no real excuse for this delay.

The committee proposes the following:

The Government of Ontario and Legislative Assembly should produce a conversion-ready digital format of all public-facing materials and provide those materials on-demand:

  • ‘on-demand’ in this case would mean immediately, meaning that it should already have been created
  • ‘conversion-ready digital format’ means a format which has the properties it needs to be readily converted into an accessible format

Timeline: January 1, 2021

The intent of this recommendation is to strengthen the idea that accessible formats should not be offered as an accommodation, to be provided only when requested and only after a delay. Accessible formats and communications supports are necessary from the start as part of an accessibility foundation. This would be a significant new requirement for government, but given current technology, it is possible.

Recommendation 10: On-demand ASL and LSQ translations

In developing recommendation 9, the committee struggled with the fact that users of American Sign Language (ASL) and Langue des signes québécoise or Langue des signes du Québec (LSQ) would not benefit from the change in recommendation 9. It was agreed that while providing all public facing materials in ASL and LSQ on-demand would simply be too burdensome, there are certain types of information and communication which should be available in these formats.

The committee proposes the following:

The Government of Ontario should convene a meeting of deaf, hard of hearing and deafblind stakeholders to determine which materials should be provided by the Government of Ontario to the public in ASL and LSQ translation. The committee recommends that following the meeting, the materials identified start to be made available on-demand.

Timeline: One year for the meeting to occur, and January 1, 2021 for the requirement to be effective.

The committee’s intent is that the Government of Ontario find a fair and reasonable answer to the question of which types of materials should be available in ASL and LSQ on demand.

Part 3: Section 13

The following recommendations relate to section 13 of the regulation, which requires organizations to provide accessible formats of publicly posted emergency plans and procedures upon request. During discussion, many committee members expressed concern with current emergency outcomes for people with disabilities, and the committee feels that improving these outcomes is absolutely critical. The committee recognizes that the scope and overall effectiveness of the requirements in Section 13 are limited, and strongly recommends that other action to improve these outcomes be taken as soon as possible.

Recommendation 11: Emergency requirements

Section 13 in the Information and Communications Standards, section 27 in the Employment Standards and Sections 37 and 56 of the Transportation Standards are all related to emergency requirements. As has been noted previously in this document, having requirements located in different places throughout the regulation is confusing for all parties. In the case of emergency requirements, that is a particularly significant problem.

The committee proposes the following:

The emergency requirements throughout the regulation should be brought together and moved into the general requirements with no material changes to what is being required.

Timeline: Immediate

The intent of this recommendation is to ensure that nothing is missed, and no requirements are overlooked when it comes to protecting the lives of people with disabilities and their families. These requirements should be consolidated and given a clear and prominent position in the general requirements of the regulation.

Recommendation 12: Unacceptable emergency outcomes and preparedness

After a significant discussion regarding emergency outcomes, the committee has concluded that the preparedness of all levels of government for emergencies involving people with disabilities is unacceptable.

The committee strongly recommends the following to help protect the lives of people with disabilities and their families:

Disability and accessibility should be front and centre in the upcoming review of the Emergency Management and Civil Protection Act. To that end, the Solicitor General, who has responsibility for emergency management, should involve people with disabilities in the review. The Solicitor General should specifically include the Accessibility Standards Advisory Council. The same process should occur when the Fire Code is next reviewed.

Timeline: Immediate

The intent of this recommendation is to address the lack of emergency planning focused on the needs of people with disabilities. It is unacceptable and must be dealt with urgently.

Part 4: Section 14

The following recommendations relate to section 14 of the regulation, which sets out the accessibility requirements for websites and web content. In both stakeholder feedback and in the committee meetings, Section 14 received the most attention and led to the most significant level of feedback and discussion. It has become clear that there is a great deal of confusion surrounding the requirements of Section 14, particularly given the rapidly changing pace of digital society.

The globally accepted standard for web accessibility is a set of standards called the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), which is published by the World Wide Web Consortium (W3C). While this standard is the one used in section 14, stakeholders and committee members agree that is not clear enough how the WCAG 2.0 guidelines should be applied to many technologies beyond websites and web content, nor is it easy to determine when the requirements of WCAG 2.0 have actually been met.

In order to help clear up this confusion and also inform its recommendations, the committee created a Digital Inclusion Technical Subcommittee. This subcommittee provided two distinct sets of expert advice to the committee:

  1. Recommendations to address confusion and gaps in section 14 (part of the phase 1 recommendations)
  2. A proposal for a new model for these standards (see phase 2)

Recommendation 13: Mobile applications and new technologies

One of the most frequently asked questions during stakeholder consultations was whether and how section 14 applied to mobile applications. The answer, for the most part, is that they do not. The current requirements apply to web-based applications only, which does not generally include mobile applications.

The committee proposes the following:

The definition of website should be aligned with the definition used by the United States Access Board, the European Union and the United Nations Convention on the Rights of Persons with Disabilities, among others, which include mobile applications, interfaces or other technologies as required. Relevant sections of these definitions have been provided in appendix C.

Timeline: By 2021, which aligns with the existing requirement for all websites to be accessible.

The intent of this recommendation is for both mobile applications which run from a website, and those which run as a standalone device but rely on the internet for function, would be subject to accessibility requirements under section 14. These requirements would apply to the government and legislative assembly, the broader public sector and large organizations. For the purposes of Section 14, small organizations are currently exempt from accessibility requirements.

Recommendation 14: Procurement

Procurement refers to the purchasing or acquiring of goods or services. The subcommittee noted that there are no accessible procurement requirements specifically related to section 14. There are procurement requirements in the general requirements section of the regulation, but the subcommittee suggested that these are not strong enough to result in accessible digital procurement.

The committee proposes the following:

The Government of Ontario and designated public sector organizations shall incorporate accessibility design, criteria and features when procuring or buying goods, services or facilities. These criteria include:

  • using qualified third-party evaluation certification services established through programs such as:
    • the United States Access Board Trusted Tester Program
    • inclusive design or accessibility certificate programs such as those offered by colleges or universities
    • professional certifications from organizations such as the International Association of Accessibility Professionals (IAAP)
    • other professional service vendors that may qualify for such activities
  • both manual and automated verification of compliance to technical web and software criteria, not just automated testing
  • functional testing of usability by persons with disabilities
  • interoperability with alternative access systems (as defined in the glossary)
  • sign language and other communication modalities
  • the requirement to procure accessible authoring and development tools

This requirement would be in addition to the general accessible procurement requirements in the regulation. The reference criteria for authoring tools would be Authoring Tool Accessibility Guidelines (ATAG) 2.0 (A and B)

Timeline: January 1, 2022. Where an obligated organization has entered into a contract before January 1, 2022, it is not required to meet the requirements of this section. The intent of the committee is not to allow grandfathering past 2023.

The committee’s intent with this recommendation is to ensure that digital procurement by the Government of Ontario and broader public sector organizations includes accessibility criteria, and that authoring and development tools that are procured are accessible.

The committee would also like non-digital procurement as required by the procurement requirement in the general requirements to be strengthened. Since this is beyond the scope of the committee’s mandate, the committee would like this work to be referred to the Accessibility Standards Advisory Council and broader government bodies that manage procurement.

Recommendation 15: Differentiating organizations/high impact organizations

The obligations of organizations under the regulation are determined by how many employees they have, as this has traditionally been a measure of how much widespread impact they have. However, the subcommittee advised the committee that as technology evolves, the number of employees is no longer necessarily a good indicator of the impact organizations may have on Ontarians. The fact is that, increasingly, organizations with very few employees are able to provide a high level or volume of services and thus should be considered “high-impact organizations.”

The committee believes that section 14, and eventually the whole regulation, need to adapt to capture these new business models.

The committee proposes the following:

  • Create a definition for ‘high-impact’ organizations. One such definition might be an organization that has one or more Ontario employees and meets either of the following criteria:
    • one million or more average annual users in Ontario (free or paid)
    • $10 million or more in yearly global revenues
  • These newly defined high-impact organizations would have to comply with the Information and Communications Standards and report under the act, and be subject to the same requirements as large organizations
  • For such businesses as described above that are under federal instead of Ontario jurisdiction, or with no employees in Ontario, the province should engage in consultation with businesses and the federal government to determine and harmonize mechanisms to regulate them

Timeline: One year with proactive outreach.

The committee’s intent with this recommendation is to ensure that all organizations with many users in Ontario, and therefore having a large impact on the province, are complying with section 14 of the regulation. This approach could be used for other requirements in the future where appropriate.

Recommendation 16: Significant refresh

Currently, the requirements of section 14 apply to organizations which either create new websites or significantly refresh existing websites. Stakeholder feedback and advice from the subcommittee suggested there is confusion about what ‘significant refresh” means, as the term is subjective. In addition, the committee learned that since Section 14 requirements apply to websites that are new or significantly refreshed, some organizations are choosing to update their websites only a bit at a time, thus avoiding the requirements. This may actually result in reduced accessibility for users.

The committee proposes the following:

  • Any content that is new or which an obligated organization changes, updates or adds to a website must meet the accessibility requirements of section 14
  • Furthermore, when content is added, changed or updated, it is recommended that organizations take the opportunity to make all content accessible
  • The committee recommends that content should include all functions, interactions and ‘branding’ (look and feel) for a site. It is recommended that section 14 include examples for the sake of clarity

Timeline: Regulation to be changed immediately, to be effective six months after the new regulation comes into force.

The intent of this recommendation is to bring the section 14 requirement closer to its intended function, which is to ensure that over time, organizations develop greater accessible content for users with disabilities.

Recommendation 17: Practicability

Section 14 contains an exemption for obligated organizations which gives them the ability to claim that making a website accessible is ‘not practicable’. The committee feels that this term is too vague and might allow some organizations to avoid doing something they are actually able to do.

The committee proposes the following:

Clearly define the term “not practicable,” bringing it in line with the term “undue hardship,” as set out by the Ontario Human Rights Code. A link to this terminology has been provided in appendix C.

Timeline: Immediate

The intent of this recommendation is to reduce how easy it is for obligated organizations to use vague wording in the standards as an excuse to not fulfil their requirements. Aligning the language with that of the Ontario Human Rights Commission would bring significant clarity, as both the commission and the Human Rights Tribunal of Ontario have previously ruled on what undue hardship actually is.

Recommendation 18: Harmonization and application across requirements

Section 14 is intended to bring about greater accessibility in websites. The committee noted, however, that websites are mentioned in different sections of the regulation, but only in section 14 are the accessibility requirements explained. In the view of the committee, this makes it too easy for stakeholders to overlook or miss the requirements.

The committee proposes the following:

It should be made clear that section 14 applies to all sections of the regulation. This could be communicated as a reference to section 14 wherever websites are directly referenced in the regulation.

Timeline: Immediate

The committee’s intent with this recommendation is to make sure obligated organizations follow website accessibility requirements by reducing any confusion about what they are obligated to do.

Part 4, subpart 1: Section 14 exemptions

Section 14 identifies a number of situations in which websites or web content do not need to comply with accessibility requirements. The committee does not believe that these exemptions are functioning as intended and recommends changes to these exemptions.

Recommendation 19: Extranet exemption

Section 14 covers internet, intranet and extranet websites, and in the process it defines what these are. Intranet websites are websites that can be accessed from within a particular organization’s network. Currently, not all organizations are required to make these sites accessible. Moving on to extranet websites, section 14 defines these as websites which require a login. It considers these as an extension of intranets, and therefore also exempt for most organizations. The problem is that a great number of other internet websites that happen to require logins are therefore also considered extranets and so are exempt, which is certainly not desirable.

The committee proposes the following:

The exemption for public-facing websites with a log-in (previously referred to as extranets) should be removed and these types of websites should be required to comply with the regulation.

Timeframe: New public-facing websites with a log-in must comply by January 1, 2022, and all public-facing websites with a log-in must comply by January 1, 2023.

The intent of this recommendation is to completely remove the exemption for extranet websites, ensuring not only that these be required to comply with section 14, but also that other internet websites not be able to avoid the requirement simply because they use logins. The committee recommends a longer timeframe for implementation as this would be a new requirement.

Recommendation 20: Intranet exemption

Further to recommendation 19, the committee believes that technology has advanced to the point where all organizations should be able to make their websites accessible under section 14. Thus far, only the Government of Ontario and Legislative Assembly are required to do so. The subcommittee and committee do not believe there would be a major issue with extending this requirement to the broader public sector and large organizations.

The committee proposes the following:

The exemption for employee-facing websites and content (previously referred to as intranets) should be removed and, like all other websites, these types of websites should be required to comply with the regulation.

Timeline: New employee-facing websites must comply by January 1, 2022, and all employee-facing websites must comply by January 1, 2023.

For clarity, the committee recommends that all definitions related to a type of website be removed and that section 14 simply apply to all websites, internet or intranet for all obligated organizations. Because this would be a new requirement, the lengthy timeline above is recommended.

Recommendation 21: Pre-2012 exemption

Section 14 provides an exemption from having to make web content accessible if that content was first published on a website before 2012. The committee discussed that this exemption has created two problems. First, some organizations are using this exemption as a loophole that enables them to continue using some content from pre-2012 websites on new websites. The second problem is that organizations are taking useful pre-2012 content, such as historical records, off their websites when they move to a new or refreshed website because they do not have the resources to make this content accessible.

The committee proposes the following:

A category should be created for older archived content. A potential model for this would be the federal Treasury Board Secretariat of Canada archived content policy. This would grant an exemption only to non-active documents. Active content, which is anything that requires input or, like forms, can be changed, will not be covered under this exemption. Pre-2012 images used for navigation in refreshed websites must be made accessible.

Timeframe: Immediate

The intent of this recommendation is to ensure that no content which is intended for active use can be exempt, and that inactive, archived content which is for informational purposes only can remain exempt.

Recommendation 22: Live captioning and audio description

Currently, the Government of Ontario and Legislative Assembly are the only organizations which must meet the live captioning and audio description requirements in the Web Content Accessibility Guidelines (WCAG) 2.0. All other organizations are exempt from implementing this requirement.

The committee proposes the following:

  • By January 1, 2022, the exemptions to the WCAG 2.0 Level AA guidelines regarding live captioning and audio descriptions should be removed.
  • Between now and January 1, 2022, obligated organizations should put in place the infrastructure to support live captioning and audio description. Organizations which are currently exempt and are required to prepare a multi-year plan should include progress toward this infrastructure in their plan.

Timeline: Exemptions removed by January 1, 2022, to be evaluated for acceleration by the next committee.

The intent of this recommendation is to have obligated organizations plan infrastructure, adopt training, and generally get ready to implement live captioning and audio descriptions by 2022, or sooner if the next committee should choose to accelerate the timeline. The committee’s intention is to establish a high standard (equal to CRTC standards for live captioning) of quality in live captions.

Recommendation 23: Web hosting location

Section 14 only applies to content which organizations control either directly or through a contractual relationship that allows for modification of the product. The committee has learned that some organizations are interpreting this to mean that if their websites are hosted on servers outside the province, they may claim exemption from the section 14 requirements.

The committee proposes the following:

Section 14 should apply to obligated organizations no matter where their web servers are located.

Timeline: One year

The intent of this recommendation is to clarify that the regulations apply to obligated organizations regardless of where their websites might be hosted.

Recommendation 24: New and emerging technologies

New and emerging technologies present the risk of discriminating against persons with disabilities. As well, people with disabilities are more vulnerable to abuses of new technology and existing and emerging privacy protections do not work for them. These issues include:

  • data gaps: people with disabilities are not reflected in existing data.
  • algorithmic bias: data analytics reflect human bias.

Even if and when these risks are ameliorated, these technologies (for example, artificial intelligence) make decisions and take actions based on an average or majority. People with disabilities are very different from each other and often represent a minority of 1. People with disabilities are harmed by data in both directions. The risks are dismissed because they only affect a small number. The benefits are not pursued because they only benefit a small number.

Note: Additional resources available in appendix C.

The committee proposes the following:

When decisions are being based on data analytics using population data, there should be a disability impact assessment.

Government should immediately create a task force to work with the government on the design and testing of its digital services and to investigate risks, risk mitigation and opportunities in the context of the disability ecosystem. The task force should include experts in disability use case, emerging technologies and data analytics, the majority of whom are people with disabilities from a wide functional cross-section. This task force shall act as an ongoing bridge to phase 2.

Recommendation 25: Web Content Accessibility Guidelines (WCAG) Version

The version of the Web Content Accessibility Guidelines referred to in section 14 of the regulation is out of date.

The committee proposes the following:

When the requirement to comply with WCAG 2.0 AA in section 14 is fully implemented (January 1, 2021), Government should update the requirement to the most recently published version of WCAG (for example, WCAG 2.1) within 1 additional year.

Part 5: Sections 15, 16, 17 and 18

The following recommendations relate to Sections 15, 16, 17 and 18, which cover educational and training facilities, producers of educational and training materials, and libraries of educational and training institutions.

One of the topics that was brought to the committee’s attention was the difficulty that education providers and students frequently have obtaining accessible resources. The committee has heard that these resources are too often unsatisfactory or delayed provision of these resources is resulting in poor learning outcomes for students with disabilities. Based on these observations, the committee recommends the following:

Recommendation 26: Purchase of accessible teaching/training materials

During its education and training discussions, the committee noted that the procurement of course materials is a good time to ensure that accessible versions are available.

The committee proposes the following:

It is recommended that obligated organizations that are educational or training institutions be required to order text books or other curricula materials, printed or digital, from producers who agree to provide accessible or conversion-ready versions, in the same time frame as print or digital materials. For clarity sake, digital includes but is not limited to static, dynamic and interactive content.

These materials should meet or exceed the obligations of education providers as described in the Ontario Human Rights Commission’s “Policy on accessible education for students with disabilities”.

Timeline: Immediate

Recommendation 27: Definition of educational and training institutions

Education and training accessibility requirements in the regulation only apply to organizations that are classified as educational or training institutions, even though many organizations which do not meet that classification provide these services.

The committee proposes the following:

That the government consider including all organizations (public or private) that provide formal education and training in the requirements.

The committee has asked the public what types of organizations should fall under the definition of formal, and provides this information to the government with this report in appendix C.

Timeline: Immediate

Recommendation 28: Increasing captionist capacity

Committee members are concerned that there are too few trained captionists in the province. While training for captionists does exist in Ontario, the committee believes there is not enough supply to meet the potential demand.

The committee proposes the following:

The Government of Ontario should explore, in partnership with post-secondary institutions, employers and apprenticeship bodies, establishing a post-secondary course to train captionists, possibly in partnership with a court stenographer’s course.

Timeline: Immediate

Recommendation 29: Accessibility in education

The committee believes that the inclusion of accessibility-related content in all levels of education curricula is one of the best ways to influence cultural change.

The committee proposes the following:

The government should explore ways to make education and skills development about accessibility, including e-accessibility, part of early years, elementary, secondary and post-secondary curricula.

Timeline: Immediate

The intent of this recommendation is to increase the amount of accessibility-related content in all levels of education in Ontario.

Recommendation 30: Accessibility in information and communication tools and systems

Some members of the committee have noted that there is often a lack of knowledge regarding the needs of people with disabilities on the part of the designers of information and communication tools and systems, and this leads to a lack of accessibility in these products.

The committee proposes the following:

All obligated organizations which provide education or training on the design, production, innovation, maintenance or delivery of information and communication tools and systems shall include curricula that address the needs of all people with disabilities, including deaf, deafblind and hard of hearing people who use ASL and LSQ.

Timeline: One calendar year from effective date.

The intent of this recommendation is to ensure that information and communication tools and systems are created with accessibility features built-in and are maintained by individuals who are familiar with accessibility features.

Recommendation 31: Accessibility in provincially regulated professions

The question of accessibility in provincially regulated professions was of significant interest to the committee. Provincially regulated professions provide a wide array of services to Ontarians, and ensuring they understand the needs of people with disabilities would help make these services more accessible. The committee believes that education around accessibility in all provincially regulated professions could greatly enhance awareness and further prevent attitudinal barriers.

Note: As a resource, the committee refers to the Ontario Human Rights Code “Policy on ableism and discrimination based on disability.

The committee proposes the following:

Certification requirements of provincially regulated professions must include knowledge and application of accessibility (including accessible formats, language, communication and IT support) and the prevention of attitudinal barriers. These should be worked into instructional planning and course design for organizations which provide education or training.

Timeline: One calendar year

The intent of this recommendation is to integrate accessibility into the education and certification of regulated professionals in Ontario.

Recommendation 32: Education standards

The Information and Communications Standards of the regulation currently contain requirements related to education and training. When the committee first reviewed Sections 15–18 and proposed recommendations 24–29, the Government of Ontario had created committees to propose new standards in the regulation for education.

The committee proposes the following:

If the government creates education standards with requirements that are equal to or greater than those requirements found in Sections 15–18 of the regulation, including the result of recommendations 24–29 made in this report, these sections can be moved to the Education Standards.

If any elements of Sections 15–18, including the result of recommendations 24–29 made in this report, are not reflected in newly created education standards (or within the jurisdiction of education standards development committees) for example application of standards to private schools and colleges—these requirements must be retained in the Information and Communications Standards.

The committee’s intent is to make recommendations 24–29 related to Sections 15–18, while allowing the government to house these requirements in the most logical place in the regulation.

Part 6: Section 19

Section 19 relates to public libraries. The committee has reviewed and consulted on this section and voted to confirm that it recommends no changes to this section.

Phase 2

Declaring a breakdown – a call for a new way forward

During their deliberations and interactions with constituents, it became clear to the members of the committee that the current approach to regulating the accessibility of information and communication in Ontario is flawed, and if the approach does not change, the policy aims of the regulations will not be fully achieved. There was consensus that reliance on a wholly prescriptive standard that is not responsive to changes in technology and its application is a fundamental shortcoming of the current approach. There is also a need to enhance the active participation of those who build and use technology daily both to understand and to mandate the application of technologies in ways that maximize economic and social participation for Ontarians with disabilities.

A new model for accessibility regulation

As mentioned at the beginning of this report, the Digital Inclusion Technical Subcommittee was asked to think about some very broad questions, including what accessibility means in today’s digital world, and whether the current regulatory system is really able to deliver the desired outcomes.

In the process of considering the broader questions, the subcommittee had thorough discussions which formed the basis of a broad new proposal, presented here in this second chapter of the report, to improve access for Ontarians with disabilities: The Accessibility Ecosystem model.

The Accessibility Ecosystem model responds to what the subcommittee perceives as weaknesses in the current regulatory model and introduces a response that is better suited to a world of rapidly changing technology and business models. The committee also recognizes the need for a more responsive model that is focused on equipping obligated organizations with the knowledge and tools to best serve Ontarians on the front lines of business and government service delivery.

Government’s broader use of the Accessibility Ecosystem model

Though the application of the Accessibility Ecosystem is proposed first for digital content and its applications, this model may prove to be more broadly applicable to other standards.

The Accessibility Ecosystem is presented at a very high level, both to maximize compatibility with various requirements and in recognition that more in-depth research and development needs to be done by government and relevant stakeholders to take this model to the next step.

The committee proposes:

  • That the government adopt and operationalize phase 2 as the regulatory approach to accessibility in Ontario. The committee is aware that this approach will continue to evolve. The intent of the committee is to have phase 1 implemented in parallel with phase 2. Phase 1 should occur during the transition to phase 2.
  • Note: The infographics and additional materials (for example, long descriptions) have been submitted alongside this report after the appendices.

Timeline: Two years from submission of the final recommendations for phase 2 to be fully implemented.

What this document contains:

Current context:

  • committee investigates what the current regulatory model seems to be missing.

Accessibility Ecosystem:

  • the Accessibility Ecosystem model is proposed as a solution, and its advantages are listed.

Laws, Trusted Authority, Community Platform and Compliance

The Accessibility Ecosystem, listed and explained:

  • How is the new model better?
  • A look at what sets the Accessibility Ecosystem apart.
  • Cost, funding and sustainability
  • An explanation of how, far from being an onerous cost, the new model is actually a shrewd investment.

Current context

The subcommittee’s starting point was an acknowledgement of the fact that our understanding of accessibility has evolved since the act was drafted and implemented. People with disabilities are as diverse in their needs and perceptions as people without disabilities, and perhaps even more so. For that reason, one-size-fits-all approaches to accessibility often don’t work. In addition, it is now understood that even the word ‘accessible’ does not have a single definition and is more related to technical requirements than a person’s demand for a great experience. What is meant by accessible depends on the person and his or her goals and context. What this means is that accessibility can only be achieved through a process of inclusive design – one that recognizes that all people are variable and diverse, and our products and services must make room for a wide range of human differences.

It is also critical to understand that even if all the specified goals of the act were to be achieved by 2025, it would not be a case of mission accomplished. There would still be people with disabilities for whom Ontario is not accessible. Our society is changing all the time. New barriers to accessibility are constantly emerging, as are new opportunities for greater accessibility. The subcommittee concluded that creating an accessibility check list, however comprehensive, to address the needs of all Ontarians with disabilities is an impossible task. People not represented in the deliberations would likely be left out, unanticipated new barriers would not be considered, and new technologies that might be used to address barriers would not be leveraged. At that point, the subcommittee decided it was time to take a critical look at the current act and regulation model. What it found was five areas in which the current model is simply not meeting the needs of Ontarians with disabilities:

Participation

In the current model, the primary participants are the participating organizations and the provincial government compliance authority. The relationship is one of obligation and policing. The primary questions from obligated organizations are about what is required of them, and whether there might be exemptions. Their primary motivation for complying is avoiding penalties and/or reputational damage.

It is hard to blame organizations for this approach, because accessibility and inclusive design have traditionally been framed primarily as something that organizations must be legally compelled to do, rather than something that is also in their best interests. The fact is however, that there is significant evidence showing that inclusive design is in the interests of business. Research has shown that an organization that attends to inclusive design and accessibility, for customers and employees with disabilities, will garner economic, social and innovation benefits. There are both micro and macro-economic gains to be made for the participating company and for Ontario society as a whole, but that case is not being made clearly or often enough.

The current model also does not harness the significant energy, knowledge and support of many community stakeholders who are deeply committed to accessibility. These include:

  • students, many of whom participate in projects such as “mapathons,” design challenges and curriculum-based assignments
  • Ontario’s world-leading cluster of researchers specializing in accessibility and inclusive design
  • non-obligated organizations that recognize the importance of accessibility without being compelled to comply by law
  • persons with disabilities and their families or support communities
  • professional organizations
  • community volunteers
  • civil society

The efforts made by these people, groups and organizations are significant, but there is currently no real way to collect, harness and showcase their contributions or quantify their economic impact.

Updating

Other than the five-year review, there is currently no mechanism for keeping the standards up to date. This is especially problematic when it comes to information technology systems and practices, which are changing at an accelerating rate and affecting more and more essential aspects of our lives. Barriers to accessibility emerge suddenly, and if they are not dealt with immediately they can spread and multiply. Opportunities for greater accessibility appear, but if they are not quickly seized they can disappear. In this fast-moving world, accessibility standards quickly fall out of date, and the system is not equipped to deal with that.

Integrating innovation

Ontario is home to many innovators, many of whom have turned their ingenuity to addressing accessibility challenges. Unfortunately, there is currently no easy way for these innovators, including obligated organizations or other stakeholders, to propose new and better strategies for addressing barriers. The relationship is strictly one way, with the act essentially telling organizations what to do. This removes an incentive to innovate in accessibility.

Review and feedback

Legislation often triggers new demands for services. The act has prompted the growth of the accessibility services sector in Ontario. Training, evaluation, design, development and remediation services are now effectively growth industries in Ontario. However, these businesses and services range in expertise and quality, and there is currently no mechanism for reviewing or providing feedback about them.

Indicators

There is currently no way of tracking progress toward accessibility goals. No progress indicators have been established, making it extremely difficult to determine how well accessibility standards are working.

Based on all of this, the subcommittee concluded that an entirely new approach needs to be taken. This approach must move from presenting accessibility as an obligation to be borne by a specific group of organizations in Ontario, to a process that all Ontarians participate in, and benefit from. This is what the committee means when it refers to a culture change, and the vehicle for that culture change is the proposed new “Accessibility Ecosystem.”

The Accessibility Ecosystem

Fundamentally, the Accessibility Ecosystem is a new way of organizing the standards within the regulation. Initially, it is being proposed for the Information and Communication Standards, though the committee believes that it could one day be the framework for the full set of regulation standards. The primary aim of the Accessibility Ecosystem is to encourage organizations to see the act less as an obligation than as something in which they participate for their own benefit, and the benefit of all Ontarians. For that reason, the first step in implementing this new system, however symbolic, would be to rename “obligated organizations” as “participating organizations.” This reframing will also provide a way to keep improving and updating how we address barriers faced by persons with disabilities in Ontario, up to and beyond 2025.

The objectives of the Accessibility Ecosystem are as follows:

  • keep up with changes in technology
  • respond to new barriers
  • respond to new opportunities
  • respond to barriers not anticipated when the standards were written
  • encourage and support organizations and the larger community in finding innovative ways to address barriers
  • discourage the ‘us-them’ attitude towards accessibility, where the interests of persons with disabilities are seen as counter to the interests of businesses
  • encourage working together to make things more accessible to the benefit of everyone
  • communicate that accessibility is a responsibility we all share
  • show how accessibility and inclusive design are a good way to do business, and a good way to grow the economy and economic participation for Ontarians with disabilities
  • reduce confusion about the regulations and make it easier to find tools and resources needed to comply with them
  • provide clear, up-to-date, specific advice regarding how requirements can be met
  • create the conditions and supports so that all Ontarians feel that they can participate in removing barriers

The proposed ecosystem has three interdependent parts. They support one another, and all play a role in telling organizations what they need to do to remove barriers and expand opportunities. The ecosystem as a whole provides the balance between legal compulsion and alignment with current technical practices. All three parts require funding and ongoing support. The three parts are the laws, the Trusted Authority and the Community Platform.

The laws

This is the least flexible part. The laws would establish requirements, but not specify how they must be met. The Laws include three types:

  • Functional Accessibility Requirements (FARd) (contained in appendix B of this report). These are requirements that are constant. They do not mention specific technologies, to avoid a situation in which a technology changes and evolves to the point where the requirement no longer makes sense. If organizations need help understanding how to meet the requirements, they are linked to acceptable methods of doing so by the Trusted Authority. These requirements are modeled on and harmonized with requirements adopted by both the European Union and relevant US accessibility laws. The functional requirements do not replace technical requirements but specify what they are trying to achieve.
  • Regulations regarding the policies of the ecosystem. These govern the Trusted Authority, the Community Platform and updates to the laws.
  • Regulations that support system-wide long-term changes and improvements in the accessibility of Ontario. These include:
    • integrating education about accessibility in all education, starting as early as Kindergarten – Grade 12
    • integrating accessibility into professional training for all professions that have an impact on products and services
    • requiring accessibility when purchasing products and services, especially when spending public funds
    • including people with disabilities in decision making and planning processes, and ensuring that mechanisms for participation are accessible

Trusted Authority

The Trusted Authority would be an independent group that provides ongoing oversight and support to the system of accessibility standards, in order to ensure that the system is performing as it should and accomplishing what it is intended to accomplish. The Trusted Authority would include people with a wide range of expertise, including lived experience with disabilities.

As implied by the name, the Trusted Authority must be credible, understandable and reliable. All its activities must be transparent and open to public scrutiny. The Trusted Authority would have the power to consult with any individual or group to address knowledge and skill gaps.

The Trusted Authority would:

  • Determine and provide clear up-to-date qualifying methods for meeting regulations. (The current set of qualifying methods includes the Web Content Accessibility Guidelines 2.0, the Authoring Tool Accessibility Guidelines 2.0 and other standards such as Electronic Publication (EPub) and International Organization for Standardization (ISO) 24751).
  • In addition to qualifying methods, ensure that necessary tools and resources are available to use the qualifying methods.
  • Provide guidance regarding how to achieve the functional accessibility requirements, specific to the particular organizations. This includes links to resources and tools in the Community Platform.
  • Retire qualifying methods that are out of date.
  • Clarify laws when there is uncertainty or when there are changes.
  • Review new and innovative methods proposed by organizations and individuals to determine whether they can be used to meet the requirements.
  • Address gaps in available qualifying methods to meet the requirements.
  • Ensure that the barriers experienced by all Ontarians with disabilities are addressed by regularly evaluating who might be falling through the cracks. This includes individuals with a range of technical literacy, individuals in urban, rural and remote communities, Ontarians at all income levels and individuals with disabilities that are not visible or episodic disabilities. It also includes people who experience other barriers that might worsen the barriers experienced due to disabilities.
  • Provide, track and make publicly available indicators of progress toward an accessible Ontario. Examples of those indicators might include the number of companies with an accessibility officer, the number of accessibility complaints received and their resolution, the number of employees who self-identify as having a disability, and the number of Ontarians trained in accessibility skills.
  • Prioritize accessibility processes and tools rather than specialized technologies and services for people with disabilities. In this way, people with disabilities do not have to bear the additional cost of buying their own specific technology.
  • Support innovation that recognizes the diversity of needs experienced by people with disabilities rather than a “winner takes all” or a “one winning design” approach.
  • Support recognition that people with disabilities must be designers, developers, producers and innovators, and not only consumers of information and communication.
  • Qualifying methods must include accessible tools and processes.

The Trusted Authority would maintain an online interactive guide for participating organizations. This guide would let organizations know which FARs apply to them, what qualifying methods they could use to meet the requirements, and what tools and resources are available to help them implement the qualifying methods. The guide would be inclusively designed to consider the different types and ranges of expertise of organizations in Ontario.

It is recommended that the Trusted Authority report directly to the Legislative Assembly. It is the responsibility of the Legislative Assembly to maintain the FARs and the responsibility of the Trusted Authority to maintain the qualifying methods. Funding commitments for the Trusted Authority must span two political terms to ensure sustainability and independence. Decision-making regarding leadership of the Trusted Authority should be transparent and inclusive of Ontarians with disabilities.

Community Platform

The Community Platform would be an online platform, open to everyone in Ontario, that provides a simple and clear way for community members to contribute their knowledge, expertise and constructive criticism about accessibility in this province.

The Community Platform would:

  • collect and make accessibility resources and tools easily available
  • share training and education
  • make it possible for community members to monitor and review how organizations are doing in meeting the requirements
  • empower communities to organize events and activities that support accessibility
  • showcase and share good examples of accessible practices
  • collect and showcase data on various economic and social aspects of disability

The Community Platform must be an open online infrastructure that is easy to get into, easy to use and easy to navigate. It would allow any community member to pool, share and review a large variety of resources that are helpful in implementing the qualifying methods. These resources might include training modules, software tools, evaluation tools, design tools, reusable software components, helpful example practices, examples of contract language for procurement contracts, examples of job description language and many other resources.

The platform would also provide a means for community members to constructively review the resources. Community members would be able to identify gaps in resources, and these gaps would be disseminated publicly to potential innovators and resource producers. The Community Platform will learn from similar initiatives to avoid the pitfalls involved in keeping resources up-to-date and usable by a large diversity of individuals and organizations. Financial support would be needed to maintain the infrastructure and keep the various resources relevant and up-to-date.

Compliance

Clearly, compliance will have to be an important part of any successful accessibility ecosystem. The question, then, is how do we enforce and ensure proper compliance? Before making a more definitive recommendation, the committee would like to ask the public for input on how compliance might work, informed by its discussion on this topic summarized below:

The committee had an in-depth discussion of how compliance might work in phase 2. It was agreed that a reasoned, measured approach that rewards good actors and addresses bad behaviour is critical. In addition, greater accountability of leadership was a recurring theme. The committee also discussed greater connections between government bodies/ministries to enable government to be a better leader and using a greater spectrum of compliance measures. Some questions that came up were:

  • What is the right way to focus on organizations that want to do this right and actively build models that work well?
  • How do you evolve the current approach to compliance in order to encourage organizations to participate in this ecosystem, using a combination of both incentives and disincentives?
    • examples of incentives include grants, loans, tax benefits and public recognition of success
    • examples of disincentives include fines, levies to cover the cost of accessibility, surcharges and naming non-compliant organizations using social media
  • How best do you highlight the benefits of proactively investing in the integration of emerging technologies? How should we define emerging technology?

How is the new model better?

There are several characteristics of the Accessibility Ecosystem that set it apart. It is a more aspirational system, focusing as it does on what is important and good about accessibility, rather than simply emphasizing that it is an obligation. It is also a more inclusive system, not just inviting but actually relying on input from the public and from stakeholders, including those organizations obligated to meet accessibility requirements. Finally, it is designed to evolve and adapt as technology and attitudes change around it. Specifically, the new model will speed progress toward an accessible and inclusive Ontario because:

  • the Trusted Authority will intervene when new barriers arise
  • the Trusted Authority will integrate accessibility into the foundation before barriers are created
  • the Trusted Authority will be able to represent accessibility and inclusive design at technical and policy planning tables, to integrate inclusive design considerations from the start
  • efforts to produce services and resources that address accessibility, which are currently fragmented, will be coordinated and strategically channeled
  • new and current contributors to the goal of accessibility will be provided with productive ways to participate
  • the Trusted Authority will have the opportunity to provide a more comprehensive set of qualifying methods to address more of the barriers experienced by all persons with disabilities in Ontario
  • innovative practices that improve accessibility for people with disabilities will be showcased, rewarded and even adopted as qualifying methods
  • the Trusted Authority be able to maintain the momentum of accessibility efforts across political terms

Cost, funding and sustainability

Reports such as the Releasing Constraints report led by the Martin Prosperity Institute show that public investment in accessibility is one of the most economically rewarding investments of public dollars. By establishing a locus of expertise in accessibility, Ontario gains recognition as a global leader in meeting the growing demand for accessibility expertise and innovation, and achieves unprecedented gains in prosperity. This leadership potential has not been fully realized in the current act framework, but the Accessibility Ecosystem would change that.

The Community Platform would serve to reduce redundancy and significantly improve the effectiveness and efficiency of accessibility efforts. The Community Platform is also structured in such a way that while the infrastructure would be maintained through public funding, the resources, tools, training and review would be contributed by the community at large for mutual benefit. Support for the Trusted Authority and the Community Platform could be shared by multiple jurisdictions across Canada, including other provinces and the federal government. Other jurisdictions have expressed interest in collaborating and sharing these services.

Glossary

Qualifying methods

A means of meeting a Functional Accessibility Requirement for a type of service or product that is sanctioned by the Trusted Authority. Qualifying methods can refer to specific technologies and formats, and the tools and resources needed to employ these methods would be available in the Community Platform.

Participating organizations

Organizations within Ontario, including organizations obligated by the act, previously referred to as “obligated organizations.” The renaming recognizes that a role of all organizations in Ontario is to participate in promoting and advancing accessibility for their own benefit and the benefit of Ontario as a whole.

Platform

An online service that connects people who need something with resources or people that meet those needs. The platform provides a place to pool shared resources and tools, attach descriptions, including constructive criticism of the resources and tools. Platforms have points of entry suited to the different users and contributors of the platform.

Alternative access systems

Computer-based technology comes with a standard set of devices to interact with the technology, such as keyboards and displays. People may not be able to use these standard devices. Alternative access systems replace or augment these standard devices.

Appendix A: Committee membership

Information and Communications Standards Development Committee

Voting members

  • Rich Donovan (Chair)
  • Kim Adeney
  • David Berman
  • David Best
  • Louise Bray
  • Jennifer Cowan
  • Pina D’Intino
  • Louie DiPalma
  • Robert Gaunt
  • Gary Malkowski
  • Chantal Perreault
  • James Roots
  • Kevin Shaw
  • Jutta Treviranus
  • Diane Wagner
  • Richard Watters

Non-voting members

  • Kate Acs
  • Michele Babin
  • Adam Haviaras
  • Kathy McLachlan

Resigned

  • Jessica Gabriel
  • Ben Williamson
  • Matthieu Vachon

Digital Inclusion Technical Subcommittee

Members

  • Jutta Treviranus (Lead)
  • David Berman
  • Pina D’Intino
  • Anne Jackson
  • Dan Shire
  • Aidan Tierney
  • George Zamfir

Appendix B: Functional Accessibility Requirements (FARs)

The following is a draft of the proposed requirements that would constitute one part of the laws. These requirements would be directly linked to qualifying methods for meeting the requirements (provided by the Trusted Authority), and then to tools and resources needed to use the methods (provided by the Community Platform).

Where visual modes of presentation are provided:

  • at least one configuration must be provided that does not require vision
  • visual presentation must be adjustable to support limited vision and/or visual perception or processing (magnification, contrast, spacing, visual emphasis, layout)
  • at least one configuration must convey information without dependence on colour distinction
  • visual presentation that triggers photosensitive seizures must be avoided
  • it must be possible to render the presentation in alternative formats, including tactile formats

Where auditory modes of presentation are provided:

  • at least one configuration must be provided that does not require hearing (captions and sign language)
  • audio presentation must be adjustable to support limited hearing and/or auditory processing (volume, reduced background noise)
  • it must be possible to render the presentation in alternative formats, including tactile formats

Where speech is required to operate a function:

  • at least one configuration must be provided that does not require speech

Where manual dexterity is required for operation:

  • the opportunity to use alternative modes of operation must be provided
  • at least one mode of operation must be provided that enables operation through actions that do not involve fine motor control. These would include path dependant gestures, pinching, twisting of the wrist, tight grasping or simultaneous manual actions (for example, one-handed operation)

Where hand strength is required for operation:

  • at least one alternative mode of operation must be provided that does not require hand strength

Where operation requires reach:

  • operational elements must be within reach of all users

Where memorization is required for use:

  • at least one configuration must provide memory supports or eliminate the demand on memorization or accurate recall (unless the purpose is to teach or test memorization)

Where text literacy is required for use:

  • at least one configuration must provide literacy supports or eliminate the demand for text literacy (for example, text-to-speech, pictorial representation)
  • at least one configuration must provide simple language (unless the purpose is to teach or test text literacy where a different level of literacy is required). Simple language means the literacy level of Grade 3.

Where extended attention is required for use:

  • at least one configuration must reduce demand on attention or enable use with limited attention

Where operation has time limits:

  • at least one configuration must enable extension or elimination of time limits

Where controlled focus is required for use:

  • at least one configuration must provide support for focus or eliminate demand on controlled focus

Where specific sequencing of steps for operation is required:

  • at least one configuration must provide support for sequencing steps, or eliminate the demand for specific sequencing of operation steps (unless the purpose is to teach or test accurate sequencing)

Where abstract thinking is required:

  • at least one configuration must reduce demand for understanding abstractions such as acronyms, allegory and metaphor (unless the purpose is to teach or test abstract thinking)

Where accuracy of input is required:

  • a simple undo must be available

Where biometrics are employed:

  • alternative methods of identification must be made available

Appendix C: Definitions and resources

Relevant to all recommendations:

User: Someone who uses a product, machine or service.

Relevant to recommendation 13

United States Access Board definition of web page

A non-embedded resource obtained from a single Universal Resource Identifier (URI) using HyperText Transfer Protocol (HTTP) plus any other resources that are provided for the rendering, retrieval and presentation of content.

European Union Web Accessibility Directive scope:

  1. In order to improve the functioning of the internal market, this directive aims to approximate the laws, regulations and administrative provisions of the member states relating to the accessibility requirements of the websites and mobile applications of public sector bodies, thereby enabling those websites and mobile applications to be more accessible to users, in particular to persons with disabilities.
  2. This directive lays down the rules requiring member states to ensure that websites, independently of the device used for access thereto, and mobile applications of public sector bodies meet the accessibility requirements set out in Article 4.

United Nations Convention language:

  1. States Parties shall also take appropriate measures:(g) To promote access for persons with disabilities to new information and communications technologies and systems, including the internet.

Relevant to recommendation 14

Alternative access systems

Computer-based technology comes with a standard set of devices to interact with the technology, such as keyboards and displays. People may not be able to use these standard devices. Alternative access systems replace or augment these standard devices.

Relevant to recommendation 17

Ontario Human Rights Code (the Code) “Undue Hardship” terminology

Relevant to recommendation 26

Ontario Human Rights Code “Policy on accessible education for students with disabilities”

Relevant to recommendation 27

Public feedback answers related to the question Which types of organizations should be included in the definition of formal education?:

Note: The survey answers below are extracted from survey responses:

  1. The term ‘formal’ education or training should be defined as stated above (for example, education or training that results in a certificate or other documentation) and the requirement would apply to any organizations that provide that type of education or training.
  2. Any that provide formal education or training.
  3. Any organization that would be giving a certification at the end of the training course.
  4. Tutoring organizations, recreational learning programs such as art, music, physical activity etc.
  5. Educational institutions.
  6. Yes but some agencies do not have the resources to do this. It must be funded.
  7. Everyone.
  8. Private Sector Organizations that provide (paid for) training to externa! clients. Public and Non-Profit organization whose mandate it is to provide training.
  9. University, public schools, private/board schools, workplace education training, broadcasting networks (news), city/town governments.
  10. Any time someone is enrolling as a student or paying for training.
  11. Institutions that issue certifications and designations, along with online training sessions.
  12. Public, private and non- profit.
  13. All.
  14. All.
  15. All businesses and companies, public or private, all not-for-profit companies, schools, colleges, universities, private schools.
  16. It should include all publicly funded education and all paid education.
  17. Would not recommend using the type of organization but would recommend looking at the type or frequency of the training that is being provided. Organizations that have a dedicated training and education dept that do regular training external to their organization should be considered.
  18. Anything that leads to a certification.

Infographics

Frame 1: Accessibility Ecosystem

Frame 1: View a larger version of this infographic (PDF). Read the text version below.

A diagram representing the Accessibility Ecosystem using the visual analogy of a sailing ship in the water.

Introductory text

From obligation to participation: The AODA Accessibility Ecosystem is like a ship in an unpredictable and changing global and technical context. The laws provide the compass, the Trusted Authority steers the course, and the community uses the Community Hub to provide the ideas, tools and resources needed to make the journey.

Description of diagram

The sails of the ship are being blown by wind representing culture change and innovation.

The water has a shark fin representing barriers and fish jumping out of the water representing opportunities.

The ship represents the Ontario community and contains the three parts of the Accessibility Ecosystem: the Accessibility Law, the Trusted Authority and the Community Hub.

The Accessibility Law and Trusted Authority are two separate parts connected by a double helix that has the following phrases printed on it: “Needed Adjustments”, “How to Achieve It” and “What Must Be Achieved”. The Community Hub sits beside Trusted Authority outside the helix with arrows pointing into the helix.

Subtext for the three parts of the Ecosystem further explains each of the Ecosystem’s part. This subtext is as follows:

Accessibility Law
Measures that bring about long-term culture change
Functional accessibility requirements that remain constant
Regulating overall process

Trusted Authority
Ensuring tools and resources are available
Responding to changes in context
Retiring outdated methods
Qualifying innovative methods

Community Hub
Training
Community feedback and monitoring
Pooled resources and tools
Research and guidance
Innovative approaches to addressing barriers

Frame 2: Accessibility Ecosystem

Frame 2: View a larger version of this infographic (PDF). Read the text version below.

The same diagram represented in Frame 1 is lightened with further descriptions of the three parts of the Accessibility Ecosystem layered on top.

Introductory text

There are three important parts in the Accessibility Ecosystem: Laws, Trusted Authority and Community Hub.

Ecosystem parts descriptions

Accessibility Law
The Law is the compass that keeps the ship on course. The law achieves an accessible community and maintains rules about the structure of the overall ecosystem.

Trusted Authority
The Trusted Authority provides directions to steer the course. The Trusted Authority must keep a careful watch for new barriers, opportunities and changes in technology trends and adjust directions in response to these changes.

Community Hub
The Community Hub engages everyone in the community including the general public, people with lived experience of disability, and participating organizations. The Community Hub provides the ideas and resources needed to progress forward.

Frame 3: Accessibility Ecosystem

Frame 3: View a larger version of this infographic (PDF). Read the text version below.

The same diagram represented in Frame 2 (Frame 1 lightened) with even further descriptions of the three parts of the Accessibility Ecosystem layered on top.

Introductory text

Each of the three parts plays an important role in the ecosystem. They rely on each other to be successful.

Ecosystem parts descriptions

Accessibility Law
The laws lay out the functional accessibility requirements and provide regulations to bring about the needed culture change. The laws are the most constant.

Trusted Authority
Participating Organizations and community members can propose innovative new ways to meet the Functional Accessibility Requirements. The Trusted Authority is responsible for keeping the qualifying methods for meeting Functional Accessibility Requirements up-to-date, understandable and do-able. This requires the support of the Community Hub.

Community Hub
Everyone in the community has a role to play and can benefit from participating in the community effort. The Community Hub is the place where new ideas, tools, resources, training, reviews and constructive feedback is gathered and shared.

Frame 4: Accessibility Ecosystem

Frame 4: View a larger version of this infographic (PDF). Read the text version below.

The same diagram represented in Frame 1 is darkened. Layered on top of the darkened diagram is a circle placed in the front part of the ship within the Ontario community. The circle represents Participating Organizations. Four lines with arrows extend out of the Participating Organization circle. Each line has a question attached to it with the arrow pointing to an answer within the ecosystem.

The questions and answers are as follows:

How can I make my services accessible?
Arrow points to Accessibility Law.
A second line with an arrow extends out of the question through the Trusted Authority and back to Participating Organizations.

How can I qualify my new method?
Arrow points to Trusted Authority: Qualifying innovative methods.

Where can I learn more?
Arrow points to Community Hub: Training.

What tools are there to help?
Arrow points to Community Hub: Pooled resources and tools.

Frame 5: Accessibility Ecosystem

Frame 5: View a larger version of this infographic (PDF). Read the text version below.

The same diagram represented in Frame 4 (Frame 3 darkened). Layered on top of the diagram are two circles placed in the front part of the ship within the Ontario community. The circles represent the Public and Individuals with Disabilities. Three lines with arrows extend out of the Public circle and one line extends out of the Individuals with Disabilities circle. Each line has a question attached to it with the arrow pointing to an answer within the ecosystem.

The Public questions and answers are as follows:

How can I participate in drafting the laws?
Arrow points to Accessibility Law.

How can I propose new methods?
Arrow points to Trusted Authority: Qualifying innovative methods.

How can I provide feedback?
Arrow points to Trusted Authority.

The Individuals with Disabilities question and answer is:

How can I contribute to resources?
Arrow points to Community Hub: Pooled resources and tools.

Frame 6: trusted authority process

Frame 6: View a larger version of this infographic (PDF). Read the text version below.

An explanation of the Trusted Authority process supported by a visual design that includes line drawings of a variety of people with talk bubbles containing descriptions of who they, as the Trusted Authority, are. The talk bubbles include:

We have the power to:

  1. continuously update the qualifying methods
  2. review innovative proposed new methods as alternatives or additions to existing methods
  3. clarify and rule on disputes regarding the regulations

We have inclusive representation and the power to consult with:

  1. external subject matter experts
  2. additional individuals with lived experience
  3. representative organizations

We support the law, but are independent of partisan influence.
We link the law directly to qualifying methods supported by tools, resources and training.
We bridge political terms.

We are the Trusted Authority
The Trusted Authority is responsible for keeping the qualifying methods for meeting Functional Accessibility Requirements up-to-date, understandable and do-able. This requires the support of the Community Hub. Participating Organizations and community members can propose innovative new ways to meet the Functional Accessibility Requirements.

Frame 7: participating organizations process

Frame 7: View a larger version of this infographic (PDF). Read the text version below.

An explanation of the Participating Organizations process supported by a visual design that includes line drawings of a variety of people and talk bubbles containing questions and answers.

The questions and answers are as follows:

Question: How can I connect with potential customers with lived experience who can provide feedback?
Answer: Through community hub forums

Question: We have created tools and resources for the qualifying method, how do we share it?
Answer: Share in community hub, (make sure they’re referenced)

Question: Where can I learn more?
Answer: In the Community hub for training, education and exemplars

Question: Who has expertise and experience to help me?
Answer: Visit directory with reviews

Question: We found an innovative way to meet the functional accessibility requirement, will it qualify?
Answer: Vet with trusted authority

Question: What tools are there to help?
Answer: Access community hub tools and reviews

Question: Here are the services I provide; how do I make them accessible?
Answer: Trusted Authority provides relevant FARs and qualifying methods

We are Participating Organizations:
Participating Organizations are organizations operating in Ontario that are obligated by the Law. The Accessibility Ecosystem enables these organizations to participate in advancing accessibility in Ontario and to contribute innovative approaches. All organizations benefit from a more accessible Ontario.

Frame 8: shared responsibility and shared benefit process

Frame 8: View a larger version of this infographic (PDF). Read the text version below.

An explanation of the Community and Community Hub: Shared Responsibility and Shared Benefit process supported by a diagram that includes line drawings of a variety of people around a helix.

The left side of the helix has the following phrases:
Provide constructive feedback
Help develop training, tools and resources
Find new ways to address barriers
Create innovative inclusive technologies and practices
Help identify barriers

The right side of the helix has the following phrases:
Greater innovation
Greater prosperity
Ontario as a global leader
Participation and contributions by all Ontarians

We are the Community and the Community Hub
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Click here to download in MS Word format the Ontario Bioethics Table’s September 11, 2020 recommendations to the Ontario Government on Critical Care Triage during the COVID-19 Pandemic



Click here to download in MS Word format the Ontario Bioethics Table’s September 11, 2020 recommendations to the Ontario Government on Critical Care Triage during the COVID-19 Pandemic



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The Ontario Bioethics Table’s Secret September 11, 2020 Recommendations on How to Ration or “Triage” Life-Saving Critical Medical Care if COVID-19 Cases Overload Ontario Hospitals are Finally Revealed, and Incorporate a Number of Disability Advocates’ Proposals – But We’re Not Out of the Triage Woods Yet!


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 Ontario Bioethics Table’s Secret September 11, 2020 Recommendations on How to Ration or “Triage” Life-Saving Critical Medical Care if COVID-19 Cases Overload Ontario Hospitals are Finally Revealed, and Incorporate a Number of Disability Advocates’ Proposals – But We’re Not Out of the Triage Woods Yet!

December 15, 2020

SUMMARY

What a major partial breakthrough we have had in our 9-month campaign to ensure that patients with disabilities face no discrimination in access to life-saving critical care if the uncontrolled surge in COVID-19 infections requires the rationing or triage of critical care in Ontario hospitals. At the end of the day last Thursday, December 10, 2020, we finally got to see the previously-secret September 11, 2020 recommendations on critical care triage from the Government-appointed Bioethics Table. Right here and now, we make these recommendations public. You can download the Bioethics Table’s September 11, 2020 recommendations on how to conduct critical care triage by clicking on this link: https://www.aodaalliance.org/wp-content/uploads/2020/12/Sept-11-2020-Draft-Critical-Care-Triage-Recommendations-from-Ontario-Bioethics-Table.docx

This Update gives you all the background leading to this interim breakthrough. It is going to take us some time to fully analyze the Bioethics Table’s September 11, 2020 recommendations. However, from our first quick review, it is clear that last summer, the Bioethics Table adopted a number of key points made by disability community advocates and experts including, among others, the AODA Alliance and the ARCH Disability Law Centre.

The Bioethics Table commendably that the discriminatory Clinical Frailty Scale, which the Government had previously directed all hospitals to use for triage, should NOT be used, because it is discriminatory against patients with disabilities. The Bioethics Table recommended that human rights principles should form an important part of any triage protocol. It recommended a number of key restrictions on triage decisions for which we advocated in the AODA Alliance’s April 14, 2020 Discussion Paper on this issue. It called for there to be due process protections for patients with disabilities who are at risk of being refused life-saving critical care due to rationing, though not all the due process safeguards for which we advocate.

These are all very important steps forward. However, we are not yet out of the woods. There remain a number of important issues that we are exploring. It is not clear to us exactly how decisions would be made on who is refused life-saving critical care that they medically need. It is not clear that disability discrimination has been prevented, despite all those helpful improvements for which we commend the Bioethics Table.

From our review of this document, it is crystal clear that the Ford Government had no excuse or justification for keeping it secret for three months. Precious time has been inexcusably lost in the midst of a dangerous pandemic.

The AODA Alliance will be taking part in a roundtable on December 17, 2020 on this topic, organized by the Ontario Human Rights Commission. We thank the Ontario Human Rights Commission for helping press the Ford Government on this issue. Our combined pressure helped get us to this new stage.

Despite all the excitement about the new COVID-19 vaccines, the risk of critical care triage gets greater and greater as daily infections rise. Today Ontario reported a record-breaking 2,275 new cases. We will have more to say on this topic after we roll up our sleeves and dig further into the Bioethics Table’s September 11, 2020 recommendations.

Below we provide you with a short chronology of the major events on this long and winding road, including the new events unfolding over the past 10 days leading up to this news. We also set out in chronological order the six letters that document these events as they unfolded.

  1. The December 7, 2020 letter from the AODA Alliance to Health Minister Christine Elliott
  2. The December 7, 2020 letter from the Ontario Human Rights Commission’s Chief Commissioner to Health Minister Christine Elliott
  3. The December 10, 2020 Letter from the Ontario Human Rights Commission to the AODA Alliance and Other Human Rights Organizations
  4. The December 11, 2020 email from AODA Alliance Chair David Lepofsky to Bioethics Table Co-chair Jennifer Gibson
  5. The December 15, 2020 letter from the AODA Alliance to Health Minister Christine Elliott, and
  6. The December 15, 2020 email from AODA Alliance Chair David Lepofsky to the Bioethics Table Co-chairs.

For more background on this issue, check out:

  1. The December 3, 2020 open letter to the Ford Government from 64 community organizations, calling for the Government to make public the secret report on critical care triage from the Government –appointed Bioethics Table.
  2. The AODA Alliance’s unanswered September 25, 2020 letter, its November 2, 2020 letter and its November 9, 2020 letter to Health Minister Christine Elliott
  3. The August 30, 2020 AODA Alliance submission to the Ford Government’s Bioethics Table, and a captioned online video of the AODA Alliance’s August 31, 2020 oral presentation to the Bioethics Table on disability discrimination concerns in critical care triage.
  4. The September 1, 2020 submission and July 20, 2020 submission by the ARCH Disability Law Centre to the Bioethics Table.
  5. The November 5, 2020 captioned online speech by AODA Alliance Chair David Lepofsky on the disability rights concerns with Ontario’s critical care triage protocol
  6. The AODA Alliance website’s health care 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

Short Chronology of the Ontario Critical Care Triage Saga

(Note: this does not list every letter or other action taken on this issue by disability advocates, including the AODA Alliance)

February 2020: With the COVID-19 pandemic approaching Canada, the Ontario Government appoints an external advisory Bioethics Table to propose how to ration or triage critical medical care if hospitals get overloaded. The public is not told about this. Disability community is not consulted.

March 28, 2020: the Bioethics Table recommends a critical care triage protocol. The Ford Government sends it to all Ontario hospitals. It is not made public. The public is not told this is going on.

April 8, 2020: After word of the triage protocol is leaked to the disability community, an open letter to the Ford Government is made public, condemning the March 28, 2020 protocol as discriminating based on disability.

April 21, 2020: The Ford Government says the March 28, 2020 triage protocol is only a draft, even though it was not marked “draft”. The Government says human rights and community experts will be consulted on it.

Summer 2020: The Bioethics Table invites some disability advocates and experts to a series of virtual meetings to get input. A revised draft triage protocol is shared, which the AODA Alliance makes public on its website on July 16, 2020.

August 31, 2020: Disability advocates and experts make their closing presentation to the Bioethics Table and send in detailed written submissions.

September 11, 2020: the Bioethics Table submits its revised recommendations on critical care triage to the Ford Government. These are shared with the Ontario Human Rights Commission but not the public, despite the fact that the Ontario Human Rights Commission and the Bioethics Table urge the Government to make this report public.

September to December 2020: the Ford Government refuses to make public the Bioethics Table’s September 11, 2020 recommendations, despite requests from the disability community, the Opposition in the Legislature, the Bioethics Table, the Ontario Human Rights Commission and the media. No explanation for this secrecy is provided.

October 29, 2020: The Ford Government writes Ontario hospitals to belatedly cancel the March 28, 2020 triage protocol and direct that it not be followed. The Government does not make this action public.

November 5, 2020: In the Legislature during question Period, the NDP presses the Government to make public the Bioethics Table’s recommendations and to cancel the March 28, 2020 triage protocol. In response to this question, the Government reveals for the first time that it had cancelled the March 28, 2020 critical care triage protocol. It says that it “may” send a new critical care triage protocol to health providers in the future if conditions deteriorate significantly but doubted that such conditions would happen.

December 3, 2020: 64 organizations mark the International Day for Persons with Disabilities by making public an open letter to the Ford Government calling for the Government to make public the Bioethics Table’s September 11, 2020 triage protocol recommendations. The Government is confronted on this issue in the Legislature during Question Period.

December 3, 2020: During the Premier’s midday news conference, Health Minister Christine Elliott tells the media there are discussions now ongoing with the Ontario Human Rights Commission on what the triage protocol should provide.

December 7, 2020: The Chief Commissioner of the Ontario Human Rights Commission writes Health Minister Christine Elliott in substance contradicting her claim that discussions are now ongoing with the Ontario Human Rights Commission on the triage protocol. The Chief Commissioner states that the Minister has not even answered the Commission’s October 16 and November 6, 2020 letters to the Minister on this topic. (Letter set out below.)

December 7, 2020: The AODA Alliance writes Health Minister Christine Elliott documenting that there is an unexplained and troubling contradiction between the Minister’s December 3, 2020 statement to the media and the Human Rights Commission’s December 7, 2020 letter to the Minister. The Minister is again pressed to make public the Bioethics Table’s September 11, 2020 triage recommendations. (Letter set out below.)

December 10, 2020: The Ontario Human Rights Commission writes the AODA Alliance and other human rights organizations to provide a copy of the Bioethics Table’s September 11, 2020 triage recommendations. A December 17, 2020 roundtable is announced to get input on those recommendations. (Letter set out below.) We believe that the combination of all our efforts and those of the Ontario Human Rights Commission over the previous week helped get the Government to finally let the September 11, 2020 Bioethics Table recommendations see the light of day.

December 11, 2020: AODA Alliance Chair David Lepofsky writes the Bioethics Table Chair to resist a claim that the Bioethics Table’s September 11, 2020 recommendations remain confidential. The AODA Alliance will treat them as public. (Letter set out below.)

December 15, 2020: AODA Alliance again writes Health Minister Christine Elliott to ask the Government to make public any documents it has sent hospitals on barrier’s September 11, 2020 triage recommendations, to ask to speak directly with the Government’s internal Critical Care Command Table, and to urge an end to the Government’s protracted secrecy in this area. (Letter set out below.)

December 15, 2020: AODA Alliance Chair David Lepofsky writes the Bioethics Table Co-Chairs to ask for further information to help human rights organizations prepare for December 17, 2020 roundtable. (Letter set out below.)

December 7, 2020 Letter from the AODA Alliance to Ontario Health Minister Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

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/

December 7, 2020

To: The Hon. Christine Elliott, Minister of Health

Via email: [email protected]

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

Re: Ontario Government’s Protocol for Medical Triage of Life-Saving Critical Care in the Event Hospitals Cannot Handle All COVID-19 Cases

We write about your public statement to the media on December 3, 2020, the International Day for Persons with Disabilities. As we clearly understood it, you said that your Government is now holding ongoing discussions with the Ontario Human Rights Commission on a proposed protocol for rationing or triage of life-saving critical medical care, if skyrocketing COVID-19 infections require rationing of critical care in Ontario hospitals. The text of your full exchange with a Global News reporter, available on Youtube, during Premier Ford’s December 3, 2020 news conference, is as follows:

“Miranda Anthistle: Hi there, thank you for my question.

Doug Ford: Hi. How are you?

Miranda Anthistle: Ok, so the first one is, the Ontarians With Disabilities Act Alliance has written an open letter to your government about transparency on how decisions will be made when it comes to prioritizing life-saving treatments and who will get them if hospitals become overwhelmed. So will this information be released and how does the government plan on prioritizing life-saving treatments?

Doug Ford: Pass that to the Minister:

Christine Elliott: Well this is a very important issue and one that health care professionals asked us to deal with very early on in the pandemic because they were concerned about Ontario becoming overwhelmed in the same way that Italy was, for example. So a draft protocol was developed that had been sent to hospitals, but this is really only meant for internal purposes but I know that a number…and is not being acted upon. It was met with a lot of concern by a number of disabilities groups and seniors groups and so we reached out to the table at the Health Command Table reached out to the Ontario Human Rights Commission to obtain their assistance in redrafting a protocol and I understand there is still discussions ongoing with the Ontario Human Rights Commission in order to make sure that we reach a level place where everyone is dealt with fairly in terms of dealing with the triage protocol whether it’s for people with disabilities, for seniors, racialized communities, indigenous communities making sure that it’s there and level for all people.

So those discussions are ongoing. I’m not sure exactly how long they will be continuing but that will come forward at the appropriate time.”

As we understand it, in that statement, you suggest that the Government now is having ongoing discussions with the Ontario Human Rights Commission over what a critical care triage protocol should include, to ensure that it is fair to all, including people with disabilities, seniors, members of Indigenous communities and members of racialized communities. Yet from a letter to you today from the Chief Commissioner of the Ontario Human Rights Commission, Ena Chadha, it clearly appears that no such discussions with the Government are in fact taking place. To the contrary, Chief Commissioner Chadha makes it clear that you have not even answered her two recent letters on this very topic, dated October 16, 2020 and November 6, 2020. Chief Commissioner Chadha states as follows in her November 7, 2020 letter to you:

“I am writing further to my letters of October 16, 2020, and November 6, 2020, requesting an opportunity to meet with you to discuss next steps for a consultation with human rights stakeholders on the latest draft of the COVID-19 critical care triage protocol.

I have not received any response or heard directly from your office about these requests, and was surprised to learn that, during the Premier’s midday news conference on December 3, 2020, you stated discussions are now ongoing with the Ontario Human Rights Commission (OHRC) about the proper critical care triage protocol to put in place that is fair to everyone. I understand that you further stated that you were not sure how long these discussions with the OHRC were continuing, “but the [critical care triage protocol] would come forward at the appropriate time.”

Given this statement to the media, the concerns I previously raised in my October 16 letter, and the urgent need to ensure that vulnerable groups who will be affected by any critical care triage protocol have an opportunity to share their perspectives before it is finalized, I am hoping that the Government will now agree to broadly disseminate the latest draft of the critical care triage protocol and promptly support and undertake consultations with human rights stakeholders. As you no doubt are aware, many human rights stakeholders have been strenuously calling for your Ministry to make public and consult on the current version of the critical care triage protocol because of potential concerns of inequitable implications in rationing or “triaging” critical medical care.

I would be pleased to meet with you to further discuss the OHRC’s interest and participation in a consultation process, as well as our capacity to serve as a resource and support this urgent work. My office will contact your office to schedule a call as soon as possible so we can be in a position to move forward quickly on this important step for protecting all Ontarians.”

Today’s letter to you from the Chief Commissioner of the Ontario Human Rights Commission clearly appears to contradict what you said to the media on a very important point regarding a potential life-and-death issue. The Government can hardly claim it has ongoing discussions with the Ontario Human Rights Commission on the terms of a possible critical medical care triage protocol if the Government has not even answered the Chief Commissioner’s two recent letters to you on that very topic in over a months since you received the latest of those letters. This is all the more disturbing because it is our understanding that the issue of what to do about critical care triage shifted directly to your Ministry and your Government after the Bioethics Table submitted its report and recommendations to the Government and the Ontario Human Rights Commission in the middle of September. Put simply, since then, this issue has been on your plate.

Your Government’s approach to this issue continues to be riddled with protracted, harmful and unjustified secrecy and evasiveness. Last winter, your Government did not make public the fact that it had directed its Bioethics Table to prepare a proposed critical care triage protocol, and that a March 28, 2020 protocol was sent to all Ontario hospitals. The disability community learned about this through a leak.

We and others called for months for that discriminatory protocol to be cancelled. Yet your Government did not make public the fact that it had finally cancelled that March 28, 2020 protocol until it was pressed on this issue in Question Period on November 5, 2020.

You have not answered any of our letters to you on this issue, dated September 25, 2020, November 2, 2020 or November 9, 2020. No one from your Ministry or from Ontario Health (part of the Government) has ever reached out to us to discuss anything regarding the issue of critical medical care triage in the many months that we have publicly been raising serious concerns over this issue.

As noted above, according to today’s letter to you from the Ontario Human Rights Commission’s Chief Commissioner, you have not even answered the Commission’s two letters to you this fall. Your Government has repeatedly refused to make public the report and recommendations of the Government-appointed Bioethics Table, which you received almost three months ago.

When your Government was clearly and directly asked to release those recommendations to the public in Question Period in the Legislature on November 5, 2020 and again on December 3, 2020 (the International Day for Persons with Disabilities), your Government’s seemingly scripted answers were demonstrably evasive. When asked there, your Government did not agree to make those recommendations public. Similarly, your Government refused to do so in response to inquiries earlier this fall from Radio Canada and the Toronto Star.

The Ontario Human Rights Commission has repeatedly called on you to make public the Bioethics Table’s report and recommendations, and to consult with affected stakeholders in the human rights community. We would count ourselves among them. Your own Bioethics Table has called on you to make public their recommendations. On December 3, 2020, an open letter to you from fully 64 organizations and groups called on you to make those recommendations public now.

The Government has never offered a word of explanation or justification for its protracted secrecy here. It has not explained how that secrecy could be squared with the Premier’s promise to be open and transparent about the Government’s response to the COVID-19 pandemic, and his promise to protect the most vulnerable.

At the Premier’s December 3, 2020 news conference, you stated that a protocol would be made public at “the appropriate time”. Minister, now is the appropriate time! More and more people are contracting COVID-19. Hospitals are getting closer and closer to the breaking point. US media reports that medical rationing is on the verge of becoming necessary in some places, if it is not already the case now. Moreover, even if the Government is still working on this issue, we need to now see the recommendations that the Bioethics Table submitted to you three months ago. We need to see to what extent, if any, the Bioethics Table implemented recommendations that disability advocates and experts presented to them. On this life-and-death issue, Ontarians, including vulnerable people with disabilities do not have the luxury of time!

We need to now have the opportunity to directly speak to and consult with those within your Government who are working on this issue. Last summer, we only got to speak to the Bioethics Table. That is a voluntary body, outside Government, that only made non-binding recommendations to the Government. It is not the body that decides what the final triage protocol would be.

We ask you to let us know who, within the Government, is working on this issue, and who has lead responsibility for it? In a number of other areas, the Government has established “command tables”. Have you established a triage command table, or some such working group? If so, what is their mandate? Who is on this committee or in this group? Which members of the Bioethics Table, if any, are on that internal Government committee or working group? What are their time lines for action?

Last winter, your Government was correct to conclude that it needs to get ahead of the game, and to have a critical care triage protocol in place, in case it is needed. Our shared hope that triage will not be needed does not diminish the need for to be ready, just in case.

Ontarians cannot afford to simply trust your Government’s speculative claim in the Legislature on November 5, 2020 that the situation in Ontario should not require resort to critical care triage. Since making that claim, daily rates of infections have continued to break records, day after day. Various communities have been locked down. Restrictions during lock-downs have been gradually made more strict. The Government’s modelling predicts much worse to come. Media reports show that hospitals are being stretched.

The Government has claimed that it has expanded the number of hospital “beds” in the face of the COVID-19 pandemic. Does each of these new beds qualify as a fully-equipped and fully staffed intensive care bed, with all the intensive care doctors, nurses, equipment, environmental controls and ventilator technicians needed to effectively support those “beds”?

Please answer our important inquiries in this letter. Please fulfil Premier Ford’s written election promises to 2.6 million Ontarians with disabilities in his May 15, 2018 letter to the AODA Alliance, that:

“Your issues are close to the hearts of our Ontario PC Caucus and Candidates, which is why they will play an outstanding role in shaping policy for the Ontario PC Party to assist Ontarians in need.”

Sincerely,

David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

CC: Premier Doug Ford [email protected]

Helen Angus, Deputy Minister of Health [email protected]

Raymond Cho, Minister of Seniors and Accessibility [email protected]

Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]

Todd Smith, Minister of Children, Community and Social Services [email protected]

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]

December 7, 2020 Letter from Ontario Human Rights Chief Commissioner Ena Chadha to Ontario Health Minister Christine Elliott

December 7, 2020

The Honourable Christine Elliott
Minister of Health
College Park 5th Floor, 777 Bay Street

Toronto, ON M7A 2J3

[email protected]

Dear Minister Elliott:

RE: Follow-up on critical care triage protocol

I am writing further to my letters of October 16, 2020, and November 6, 2020, requesting an opportunity to meet with you to discuss next steps for a consultation with human rights stakeholders on the latest draft of the COVID-19 critical care triage protocol.

I have not received any response or heard directly from your office about these requests, and was surprised to learn that, during the Premier’s midday news conference on December 3, 2020, you stated discussions are now ongoing with the Ontario Human Rights Commission (OHRC) about the proper critical care triage protocol to put in place that is fair to everyone. I understand that you further stated that you were not sure how long these discussions with the OHRC were continuing, “but the [critical care triage protocol] would come forward at the appropriate time.”

Given this statement to the media, the concerns I previously raised in my October 16 letter, and the urgent need to ensure that vulnerable groups who will be affected by any critical care triage protocol have an opportunity to share their perspectives before it is finalized, I am hoping that the Government will now agree to broadly disseminate the latest draft of the critical care triage protocol and promptly support and undertake consultations with human rights stakeholders. As you no doubt are aware, many human rights stakeholders have been strenuously calling for your Ministry to make public and consult on the current version of the critical care triage protocol because of potential concerns of inequitable implications in rationing or “triaging” critical medical care.

I would be pleased to meet with you to further discuss the OHRC’s interest and participation in a consultation process, as well as our capacity to serve as a resource and support this urgent work. My office will contact your office to schedule a call as soon as possible so we can be in a position to move forward quickly on this important step for protecting all Ontarians.

Sincerely,

Ena Chadha, LL.B., LL.M.

Chief Commissioner

cc:       Helen Angus, Deputy Minister, Ministry of Health

Matthew Anderson, President and CEO of Ontario Health

Jennifer Gibson, Co-Chair, COVID-19 Bioethics Table

Hon. Doug Downey, Attorney General

David Corbett, Deputy Attorney General, Ministry of the Attorney General

OHRC Commissioners

December 10, 2020 Email from Ontario Human Rights Commission to AODA Alliance and Other Human Rights Organizations

December 15, 2020

Dear Roundtable Participant:

The Ontario COVID-19 Bioethics Table invites your participation in a roundtable on December 17th 2020 to review and provide feedback on the Critical Care Triage during Major Surge in the COVID-19 Pandemic: Proposed Framework for Ontario (hereafter the “Proposed Framework”). The roundtable will be attended by representatives from the Ministry of Health, Ontario Health and the Ontario Critical Care Command Table who will be present as observers.

The Proposed Framework with recommendations for next steps was submitted to the Ministry of Health and Ontario Health in September 2020. It is a green document within the overall Ontario COVID-19 pandemic response. An initial draft framework was developed and released to Ontario hospitals on March 28th. It was never implemented and was subsequently rescinded on October 29th by Ontario Health. The Proposed Framework has evolved iteratively through April to August 2020 based on a continuing review of existing and emerging academic literature and published policy statements on critical care triage in the COVID-19 pandemic, consultation with clinical, legal, and other experts, and feedback from health system stakeholders. All inputs were carefully considered by the Bioethics Table and incorporated into the Proposed Framework to the greatest extent possible. A summary of key challenges is included below.

The following questions will guide the roundtable discussion:

  • What are the strengths of the Proposed Framework?
  • What aspects of the Proposed Framework could benefit from further revision?
  • What changes would you propose?

Please note that a draft “protocolized” version of the Proposed Framework has been created by the Ontario Critical Care Command Centre and shared with hospitals for their feedback. This draft institutional protocol is substantially the same as the Proposed Framework document but also includes additional details about institutional procedures, data collection forms, and communication tools. Any changes to the Proposed Framework following from the roundtable discussion will also apply to the draft institutional protocol.

We look forward to your participation and feedback. By the end of the roundtable, we hope we will be able to reach general agreement on most aspects of the Proposed Framework. If you are unable to attend the roundtable, we welcome your written feedback. Please send to Dianne Godkin ([email protected]) no later than noon on December 17. We hope to complete the consultation by December 18.

Sincerely,

Jennifer Gibson, Co-Chair, Bioethics Table  Dianne Godkin, Co-Chair, Bioethics Table

 

 

Summary of Key Changes in Proposed Framework

Overall Context

  • Greater clarity on the context, scope and limits of critical care triage in the COVID-19 pandemic (i.e., only intended for use in a major surge in demand for critical care and only to be used if directed by the appropriate authority)
  • Significant reformulation of triage as not just a clinical problem of scarce resources, but also fundamentally a broader social problem encompassing human rights and just reparation in the context of health and social inequities

Ethical Principles

  • Explicit emphasis on human rights and recognition of pre-existing health and social inequities in the health system
  • More explicit identification of the ethical principles underpinning the approach to triage — original document was anchored to three principles (utility, proportionality, fairness); the current version specifies nine principles emphasizing equity and non-discrimination

Triage Process

  • Greater clarity on the nature, purpose, and rationale for explicit clinically-based triage criteria
  • Greater clarity and precision about what is and what is not permissible in the triage process
  • Specification of a single prioritization criterion – short-term mortality risk at <80%, <50% or <30% – and temporal parameters of ‘short-term mortality risk’ to mitigate risk of categorical exclusion of patients based on factors unrelated to their critical illness
  • Emphasis on individual assessment of each patient
  • Underlining of importance of ensuring clinical tools do not violate human rights

Legal Considerations

  • Inclusion of a stronger statement about the need for an emergency order to protect clinicians from civil and criminal liability
  • Recommendation that the Proposed Framework undergoes independent legal review

Due Process Elements

  • Clarification of duties to patients, including but not limited to accommodation, culturally safe and appropriate practices, presence of trusted advisor/community member
  • More detailed description of due process elements throughout the triage process
  • Clarification of scope and mechanism of appeal
  • Clarification of training/education content areas

Oversight

  • Clarification of need for a consistent and ‘standardized’ approach across province and institutional settings and conditions for triggering implementation of triage approach and transition between levels
  • Specification of roles and accountabilities
  • Clarification of the need and scope for systematic data collection to support monitoring and iterative review of triage approach

Recommendations

  • Specification of next steps to foster transparency and trust

December 11, 2020 Email from , AODA Alliance Chair David Lepofsky to Bioethics Table Co-Chair Jennifer Gibson

To: Jennifer Gibson, Co-Chair Bioethics Table

From: David Lepofsky CM, O. Ont

Chair Accessibility for Ontarians with Disabilities Act Alliance

Date: December 11, 2020

Dear Jennifer,

I am writing to respond to your email just now, in which you suggest that the triage protocol that was sent to me is confidential. You wrote in material part:

“I do also wish to pick up on your question yesterday about whether the document is public. The triage framework document has a ‘confidential’ watermark because while the Bioethics Table has a green-light to circle back with human rights stakeholders, the document has not been authorized for public release. I feel hopeful that we will have greater clarity on this after the round table next week.“

With great respect, I am under no obligation to keep that document confidential and give no undertaking to keep it confidential. I was not yesterday asking if it is confidential. I stated that I am proceeding on the basis that it is not. Yesterday I wrote as follows in an email addressed to the Ontario Human Rights Commission, you and others:

“We will proceed on the basis that we are not undertaking any confidentiality in connection with this document and are free to make it public.”

No one asked me for a commitment of confidentiality before sending me the new Bioethics Table proposed critical care triage protocol. Had I been so requested, I would not have given a confidentiality commitment. The Government cannot retroactively and unilaterally impose a confidentiality obligation upon me after the fact.

Making this even more obvious, after I received the email (on which you were copied) yesterday from the Ontario Human Rights Commission forwarding the new triage document, I immediately replied to all that I saw no attachment. I asked that the document in issue be re-sent to me. It was in that email that I stated quite unequivocally that we would treat this document as public, as quoted above. It was in response to that very email that the attachments were thereafter forwarded to me.

Our position could take no one by surprise. As you will recall, last summer, we gave no earlier confidentiality commitment regarding the revised draft triage protocol on which we were invited to comment over the summer. To the contrary, we made it clear that we would not agree to keep it confidential. In the face of that position, we were provided last summer’s earlier revised draft triage protocol. We publicly posted that earlier document online last July.

Moreover, for months, we have repeatedly and publicly been critical of the undue, excessive and protracted Government secrecy surrounding the Government’s approach to the issue of critical care triage. We would not now agree to act to further that unjustified secrecy.

Beyond that, from the emails we received yesterday, it appears that the Government has already sent this document or something including it to Ontario hospitals. As such, the proverbial horse has left the stable.

You stated that the document has a ”watermark” (whatever that is) stating that it is confidential. I should note that the accessible MS Word version which I have opened does not include the word “confidential”. If it has such a “watermark”, it is not accessible. That MS Word version of this new draft protocol was sent to me specifically as an accommodation i.e. so that I would have an accessible version of it, rather than a pdf. It is commonly known that I am blind.

In any event, such a “watermark”, even if accessible, would not be apparent until after the document was opened. That does not retroactively create any obligations of confidentiality on my part.

Undoubtedly, this document has been sent to us at the Ontario Governments request, for the purpose of gathering input for the Government. The Government did not ask us in advance to agree to confidentiality in relation to this document. Indeed, no one at the Ministry of Health has had any direct contact with us at all about this entire triage issue, despite our writing the Minister of Health several times about the issue. As I understand it, the Bioethics Table, while appointed by the Government, is not itself part of the Government of Ontario.

We look forward to reviewing this new document and providing feedback on it. To help our review of it, can you explain what substantive changes were made as a result of our feedback to the Bioethics Table last summer?

Please confirm that you received this email. Stay safe.

December 15, 2020 Letter from AODA Alliance Chair David Lepofsky to Ontario Health Minister Christine Elliott

Accessibility for Ontarians with Disabilities Act Alliance

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/

December 15, 2020

To: The Hon. Christine Elliott, Minister of Health

Via email: [email protected]

Ministry of Health

5th Floor

777 Bay St.

Toronto, ON M7A 2J3

Dear Minister,

Re: Ontario Government’s Protocol for Medical Triage of Life-Saving Critical Care in the Event Hospitals Cannot Handle All COVID-19 Cases

We are following up on our four unanswered letters to you dated September 25, November 2, November 9 and December 7, 2020. These ask about the Ford Government’s plans for deciding which patients needing life-saving critical medical care would be refused that care, if the record-breaking surge in COVID-19 cases overloads Ontario hospitals and requires rationing or “triage” of critical care beds and services. Please respond to us.

We have been waging a frustrating, uphill campaign for eight months to ensure that patients with disabilities suffer no disability discrimination in access to critical care if hospital overloads necessitate triage. Events since we last wrote demonstrate that our concerns are amply justified. Excitement over the COVID vaccine does not reduce our concerns. The pandemic is still raging out of control.

As a positive step forward, on Thursday, December 10, 2020, the Ontario Human Rights Commission sent us and several other human rights advocates the Government-appointed Bioethics Table’s September 11, 2020 recommendations for a critical care triage protocol. The Bioethics Table is a purely advisory body external to the Government. We have been campaigning for three months to get the Government to make those recommendations public.

1.        Bioethics Table’s Recommendations A Helpful Step Forward, But Problems Still Remain

We need time to study the external Bioethics Table’s September 11, 2020 recommendations. However, here are several important preliminary points. First, The Bioethics Table now commendably agrees with us that the “Clinical Frailty Scale” (CFS) should not be used to decide which patients should be refused critical care, if triage becomes necessary. It recognizes that to use the Clinical Frailty Scale in critical care triage would impose disability discrimination against patients with disabilities, and that research does not support the use of that Scale as a triage tool across the full spectrum of ages from 18 to end of life. We applaud the Bioethics Table for listening to this important message from disability advocates and experts last summer.

Second, it is good that for the first time, these recommendations give explicit and clear emphasis to human rights and the importance of adopting a non-discriminatory approach to critical care triage that is mandated in law. It is positive that, in response to our detailed submissions on point, the Bioethics Table has incorporated some principles to provide due process to patients at risk of being denied life saving critical care (though not all the due process safeguards that we contend are necessary).

As well, it is very commendable that for the first time, the Bioethics Table, in its September 11, 2020 recommendations, implements a number of elements from the AODA Alliance’s April 14, 2020 Discussion Paper on Critical Care Triage, such as:

“A patient’s quality of life must never be used as a factor in triage decisions, even though it may continue to inform an individual patient’s decision-making about their own care.

  • Triage decisions should not consider the costs that a patient’s future care will pose should they survive their episode of critical illness.
  • Patients who have their own, pre-existing ventilator used to treat a pre-existing chronic condition must be permitted to continue to use their personal ventilator. Their own, pre-existing ventilator must not be re-allocated to other patients.
  • Whether an individual’s underlying disease, disability, or illness is associated with a shortened life expectancy compared to average lifespans independent of their predicted short-term mortality risk should not be used as a factor in triage decisions (e.g., a person with a mental health diagnosis on average lives 7 to 10 years less compared to the general population).
  • A patient’s need for disability-related accommodations or assistance (e.g., a deaf patient who needs Sign Language interpreters to effectively communicate with hospital staff) should never be used as a factor in triage decisions.
  • Emergency medical services (EMS), nursing staff, or other staff should promptly notify a patient’s physician whenever a patient is in potential need of critical care. No assumptions should be made about whether a patient meets triage criteria; the patient’s physician is required to make this determination (see Section E for more on this process).”

As Minister, important conclusions follow. The March 28, 2020 clinical triage protocol that your Government sent to all hospitals last spring and left in place for some seven months was in fact replete with disability discrimination, according to your own Bioethics Table. To have let this happen in the midst of a pandemic is extremely disturbing.

Had it not been for relentless human rights advocacy efforts, your Government would have left that discriminatory protocol in place, rather than belatedly rescinding it on October 29, 2020. We should not have had to go to such lengths, especially in the midst of a pandemic.

Finally, last spring, The AODA Alliance and the ARCH Disability Law Centre publicly alerted the Government in writing to fundamental flaws with the Bioethics Table’s approach to critical care triage, that pervaded the March 28, 2020, triage protocol. Yet when the Bioethics Table thereafter came up with a revised draft last summer (previous to its most recent September 11, 2020 recommendations), it did not address our major concerns. What got the Bioethics Table to eventually listen to us and take some corrective action is talking directly to us at a series of summertime virtual meetings. This shows that it is vital for those inside the Government who are now making actual decisions in this area to hear directly from us, and not to simply receive written submissions or to receive our feedback second hand..

2.        Important Concerns Remain in the Proposed Approach To Critical Care Triage

Despite our having eventually made some progress, there remain vital and urgent issues that need to be addressed, and that we are now studying. It is unclear to us what the Bioethics Table is precisely recommending on the vital issue of how critical care triage decisions should be made, or on whether it will ensure that disability discrimination does not creep in through the back door. It is not clear to us that it is correct to treat such decisions as entirely medical decisions. Additional due process protections are needed beyond those that the Bioethics Table commendably recommended.

3.        Will the Government Respect the Rule of Law in the Critical Care Triage Issue

As far as we have seen, the Government has not brought forward any legislation or regulations to provide a proper legal mandate for a critical care triage protocol that authorizes refusal of life-saving critical care. Our September 25, 2020, letter to you and the Ontario Human Rights Commission’s October 16, 2020 letter to you both raise this issue. It appears that the Bioethics Table’s September 11, 2020 report to you also raises a concern in this area. To date, the Government has not responded.

This is even more important given the need to legislate a right of appeal for patients facing the possibility of being denied critical care triage that they need. The Bioethics Table’s September 11, 2020, report identifies the need for an appeal process. We agree with part of it but believe it needs to go further. Either way, a legislated mandate will be needed.

We therefore ask:

#1. Will your Government bring forward legislation or regulations needed to provide a legal foundation for any critical care triage protocol that may be instituted, including rights of appeal, and will there be public hearings on such legislation since this has such great impact on the very right to life?

4.        What is the Government’s Internal Critical Care Command Table?

We just learned that within your Government, there is now in existence a Critical Care Command Table. This group must have a different role than the Bioethics Table with whom we had dealings last summer. The Bioethics Table is not part of nor situated within the Ontario Government. The Bioethics Table is purely advisory. It gives advice to the Government. The Government itself makes decisions on issues such as the rules and procedures to be followed if critical medical care needs to be rationed.

We have been trying to talk directly with your Government about this critical care triage issue since last April. The only contact we have had since then was with the Ontario Human Rights Commission and the external Bioethics Table. Those bodies have no plenary decision-making authority over this issue.

Can you please tell us the following:

#2. What are the names and titles of the members of the Government’s internal Critical Care Command Table? Who is the lead or Chair of that committee?

#3. When was the Government’s internal Critical Care Command Table established, and what is its mandate?

#4. What is the Government’s internal Critical Care Command Table’s plan of action to develop and finalize a new Ontario critical care triage protocol, and what is the deadline for it to finish this work?

#5. The Bioethics Table recommended on September 11, 2020, that The Government appoint a multidisciplinary consensus panel to further develop and refine the clinical factors and tools to be used for critical care triage. Has this been done? If so, when was it appointed? When and to whom will it report? Who is on that panel?

5.        Let Us Now Speak Directly to the Government’s Internal Critical Care Command Table

In the nine months since the pandemic began, no one at the Ministry of Health or Ontario Health has spoken to us about our critical care triage concerns, or other disability health care issues in the pandemic. It is essential that we speak directly to decision-makers within the Government. Layers of bureaucracy should not be artificially erected as a barrier.

The external Bioethics Table learned a great deal from direct meetings with us and our disability community colleagues.

However, the Bioethics Table’s September 11, 2020 recommendations do not include all the advice that we gave to that external Table. We want to be able to give the Government all our advice, not just the points the Bioethics Table decided to include.

We therefore ask:

#6. Please immediately arrange for us to virtually meet with and provide direct input to your Government’s internal Critical Care Command Table,.

6.        Make Public All Triage Documents the Government Shared with Ontario Hospitals

It is good that we have at last gotten some information about the draft new critical care triage protocol that the Government is considering. We need to see all the information about this draft that the Government shared with Ontario hospitals or other health care providers. We gather that the Government has sent some or all hospitals more documents or information about the new draft triage protocol than we in the human rights community have been given. We should have as much access to information about this as health care providers have.

We therefore ask:

#7. Please immediately share with us and make public all the documents on critical care triage, including any drafts that the Government has sent to any or all hospitals or other health care providers.

#8. When did the Government send any or all of the external Bioethics Table’s September recommendations to any or all hospitals or health care providers this fall?

7.        End Protracted Government’s Secrecy Surrounding Critical Care Triage

As our unanswered September 25, November 2, and November 9, 2020 letters to you show, it is important for the Government to end its protracted secrecy in this area. For example, your Government unjustifiably kept secret from us and the public for three months the Bioethics Table’s September 11, 2020 recommendations. Now that we have seen them, there is absolutely nothing in them that warranted any secrecy. They contain no nuclear codes or trade secrets.

Your Government’s concealment of the Bioethics Table’s September 11, 2020 recommendations for three months hurt the public. Given the worrisome rise in daily COVID-19 infections and our hospitals being filled with patients, you should have let us study those recommendations three months ago, so that by now you’d already have our advice on them. We must now scramble to analyze them under extreme and entirely avoidable time pressure.

After we received the external Bioethics Table’s September 11, 2020 recommendations, there was an inappropriate effort to retroactively gag us from making it public. As we explained in our December 11, 2020, email to Prof. Jennifer Gibson, Co-Chair of the external Bioethics Table, we are bound by no duty to keep it secret. We anticipate that the effort to try to retroactively restrict us from disclosing it to others very likely emanated from the Government and not the Bioethics Table.

8.        Conclusions

We need you to personally intervene now to put your Government’s approach on a proper track. Minister, you have a respected reputation for being committed to protecting society’s most vulnerable, including people with disabilities. This issue has been seriously mishandled by your Ministry’s officials, or by Ontario Health, or both.

We would welcome the opportunity to speak to you and to assist you in properly addressing this difficult issue.

Sincerely,

David Lepofsky, CM, O. Ont

Chair, Accessibility for Ontarians with Disabilities Act Alliance

Enclosure: December 11, 2020 email from AODA Alliance Chair David Lepofsky to Jennifer Gibson, Bioethics Table co-chair

cc:

Premier Doug Ford [email protected]

Helen Angus, Deputy Minister of Health [email protected]

Raymond Cho, Minister of Seniors and Accessibility [email protected]

Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]

Todd Smith, Minister of Children, Community and Social Services [email protected]

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]

Jennifer Gibson, Co-Chair, Bioethics Table [email protected]

Dianne Godkin, Co-Chair, Bioethics Table [email protected]

December 15, 2020 Email from AODA Alliance Chair David Lepofsky to Bioethics Table Co-Chairs

To:

Jennifer Gibson and Dianne Godkin

Co-Chairs, Ontario Bioethics Table

Via email: [email protected]; [email protected]

From:

David Lepofsky, CM, O. Ont

Chair, Accessibility for Ontarians with Disabilities Act Alliance

December 15, 2020

Re: Critical Care Triage Protocol

Thank you for inviting the AODA Alliance to take part in a December 17, 2020, roundtable with the Government-appointed Bioethics Table on its newest September 11, 2020 draft critical care triage protocol. It proposes how decisions would be made on patients needing life-saving critical care if it becomes necessary to ration or “triage” critical care services because the skyrocketing COVID-19 pandemic overloads Ontario hospitals. Thank you also for incorporating a number of key points that disability advocates and experts urged upon you last summer in your most recent September 11, 2020 recommendations to the Ford Government.

We regret that we will not be fully prepared to give all our ultimate feedback at this roundtable, due to the short preparation time and the issues’ complexities. The triage proposal itself is 36 pages long. On the evening of December 14, 2020, you also sent a substantial series of additional materials. We will not have had time to review them all. If any are in pdf format, please provide them in accessible formats such as MS Word. We have not had time to check them for accessibility.

Given the number of people you have invited to take part, there will also not be time for all to give detailed input during that meeting. Nevertheless, we will do the best to help as much as we can in the allotted time.

To help in preparation for this meeting, may we bring the following matters to your attention:

  1. We understand from the Ontario Human Rights Commission’s December 10, 2020, email that Ontario hospitals were sent more documents or information about the Bioethics Table’s September 11, 2020 recommendations than was provided to those of us invited to take part in your upcoming December 17, 2020, roundtable. It is important for us to see all the material that hospitals have seen. Can you provide us with all that information? If you do not have authority to do so, can you support our request of the Minister of Health to do so, as set out in our letter to the Minister of today’s date, copied to you?
  1. We are rushing to read and fully understand the 36-page document that was provided to us last Friday. From it, it is not clear how a doctor is precisely being instructed to decide who will be refused critical care services if triage becomes necessary. As was the case last summer during our discussions of the now-discarded Clinical Frailty Scale, it would help us all to receive, in advance, a clear step-by-step explanation of how this would be done. It would also similarly help to be given example fact situations to illustrate how it would be applied. We expect that many, if not most, of those invited to take part in this roundtable will need this clarification in advance in order to prepare meaningful feedback for you at that roundtable.
  1. As our letter of today’s date to the Minister of Health explains, we have not previously been told about the existence or role of the Government’s internal Critical Care Command Table. Can you let us know what the membership and mandate of that committee is? We are eager to also know which, if any, members of the external Bioethics Table also sit on or assist in any way the Government’s internal Critical Care Command Table.
  1. As our letter of today’s date to the Health Minister also explains, while we are happy to speak with your group about this triage issue, your group is external to the Government. Your group merely gives advice. It makes no decisions. We want to speak directly to and meet with those inside the Government who are making decisions in this area.

We would appreciate it if you would support our request to the Government in this regard, set out in today’s letter to the Minister. We appreciate that your external Bioethics Table benefitted from and drew on a number of important recommendations that we presented during our virtual meetings with you over the summer. You are therefore in a pivotal position to explain to the Government how beneficial and important it is for them to hear directly from us.

We would be happy to provide any further information that might assist you in addressing these issues.

cc:

Premier Doug Ford [email protected]

Christine Elliott, Minister of Health [email protected]

Helen Angus, Deputy Minister of Health [email protected]

Raymond Cho, Minister of Seniors and Accessibility [email protected]

Denise Cole, Deputy Minister for Seniors and Accessibility [email protected]

Mary Bartolomucci, Assistant Deputy Minister for the Accessibility Directorate, [email protected]

Todd Smith, Minister of Children, Community and Social Services [email protected]

Janet Menard, Deputy Minister, Ministry of Children, Community and Social Services [email protected]

Ena Chadha, Chief Commissioner of the Ontario Human Rights Commission [email protected]



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Share with Others the Youtube Link to Yesterday’s Important Panel on TV Ontario’s “The Agenda with Steve Paikin” Revealing the Hardships Facing Many Ontario Students with Disabilities During Distance Education and While Attending Re-Opened Schools


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/

Share with Others the Youtube Link to Yesterday’s Important Panel on TV Ontario’s “The Agenda with Steve Paikin” Revealing the Hardships Facing Many Ontario Students with Disabilities During Distance Education and While Attending Re-Opened Schools

December 9, 2020

Did you miss last night’s important panel on Ontario’s flagship public affairs program The Agenda with Steve Paikin on the barriers and hardships facing many Ontario students with disabilities during distance learning or while attending re-opened schools? You can now watch it online any time you want, on your computer, tablet, smart phone or smart TV! If you want to cut and paste the link, here it is!

https://www.youtube.com/watch?v=AO0MDM54gnA&feature=youtu.be

In the past, TVO has upgraded the automated Youtube captioning for its postings from The Agenda with Steve Paikin and has posted a transcript of such panels within a period of days.

On this panel, Steve Paikin interviewed three guests:

  1. AODA Alliance Chair David Lepofsky, who is also a member of the Government-appointed K-12 Education Standards Development Committee, as well as a member and past chair of the Toronto District School Board’s Special Education Advisory Committee.
  2. Ontario Autism Coalition President Laura Kirby-McIntosh, who is also a teacher and mother of two children with autism.
  3. Grand Erie District School Board Special Education Advisory Committee member Paula Boutis, who is also the mother of a child with a disability and the President of Integration Action for Inclusion, a parent association of families with children with disabilities working to improve inclusion in education and community), and a past member of the TDSB Special Education Advisory Committee.

One of the many important points made during this interview is the pressing unmet need for the Ford Government to have developed and implemented a comprehensive province-wide plan on how school boards should meet the needs of a third of a million students with disabilities during distance learning and while attending re-opened schools. It is important to emphasize that the Government was handed just such a plan on a silver platter some five months ago – one it has not implemented. That plan was developed by a sub-committee of the Government-appointed K-12 Education Standards Development Committee and was delivered to the Government on July 24, 2020. That Committee has representation from the disability community and school boards. It sets out a strong consensus position.

At the end of the interview, David Lepofsky stated that Ontario Education Minister Stephen Lecce told the Ontario Legislature on July 8, 2020 that he speaks regularly with Lepofsky. You can read the official Ontario Hansard transcript of that statement! Minister Lecce has not spoken to AODA Alliance Chair David Lepofsky since he made that statement. You can also read the AODA Alliance’s September 23, 2020 letter to Education Minister Lecce, asking for a meeting.

Please encourage as many people as possible, including your member of the Legislature and your local school staff and school board officials to watch the December 8, 2020 panel on The Agenda with Steve Paikin. Forward this Update to them. Publicize it on social media.

We know that so many parents of students with disabilities are struggling more than ever to advocate to their school and school board to meet their children’s learning needs. That’s why we have made available a helpful video that offers parents of students with disabilities a series of very practical tips on how to advocate to school boards for their children. Please encourage parents, teachers, principals and others to watch that video too! Encourage principals to share that video with all the families attending their school.

We again want to acknowledge and thank Steve Paikin, and the staff of The Agenda with Steve Paikin, for shining a bright spotlight on this important disability issue. As AODA Alliance Chair David emphasized in another recent online lecture about advocating for the needs of people with disabilities during the COVID-19 pandemic, it has been inexplicably hard to get media attention on vital disability issues over the past nine months. We are struggling to understand why that is so. Bucking that trend, Mr. Paikin and The Agenda with Steve Paikin stand out as a true and commendable model of receptiveness to our issues and concerns. Steve Paikin noted at the start of this interview that it was an approach from the AODA Alliance that led his program to decide to include this panel, arising out of our concern that an earlier panel on The Agenda did not accurately describe the experience of many students with disabilities during distance education.

Despite the ordeal facing so many Ontarians, including the plight of so many students with disabilities and their families, yesterday, the Ford Government decided yesterday to cancel the rest of the sittings of the Legislature this week. It will not sit again until mid-February of next year.

It is in that context that we remind one and all that there have now been 678 days, over 22 months, since the Ford Government received the final report of the Independent Review of the implementation of the Accessibility for Ontarians with Disabilities Act by former Ontario Lieutenant Governor David Onley. In all this time, the Government has announced no comprehensive plan of new action to implement that ground-breaking report. That makes even worse the serious problems facing students with disabilities during the COVID-19 pandemic, addressed in this new episode of The Agenda with Steve Paikin.

Send us your feedback on this interview on The Agenda with Steve Paikin or on any other accessibility topic. Write us at [email protected]



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Watch TVO’s “The Agenda with Steve Paikin” Tonight at 8 or 11 PM for an Interview on Whether Distance Education and Re-Opened Schools are Meeting the Learning Needs of Students with Disabilities


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/

Watch TVO’s “The Agenda with Steve Paikin” Tonight at 8 or 11 PM for an Interview on Whether Distance Education and Re-Opened Schools are Meeting the Learning Needs of Students with Disabilities

We encourage you to watch TVO’s flagship current affairs program “The Agenda with Steve Paikin” tonight at 8 or 11 pm eastern time for an extensive interview on whether the learning needs of students with disabilities are being met this fall, both those doing distance education and those attending re-opened schools. The guests are AODA Alliance Chair David Lepofsky, Ontario Autism Coalition President Laura Kirby-McIntosh and Grand Erie District School Board Special Education Advisory Committee member Paula Boutis (who is also President of Integration Action for Inclusion, a parent association of families with children with disabilities working to improve inclusion in education and community).

This program will appear on TV (for those who still use it). It will also stream tonight at 8 pm on the Twitter feed and Facebook page of The Agenda with Steve Paikin. It will be permanently available on YouTube. In a future AODA Alliance Update, we will provide the YouTube link.

On November 13, 2020, the Agenda included a panel that explored how effectively distance education is working during COVID-19. Those earlier panelists gave distance education very positive grades, but did not give sufficient consideration to its impact on students with disabilities. Today’s broadcast gives viewers a chance to learn about that important issue with this new panel.

We applaud The Agenda with Steve Paikin for addressing this disability issue on tonight’s broadcast, which is important for a third of a million Ontario students with disabilities in publicly-funded Ontario schools. Back on May 8, 2020, The Agenda included an interview about our campaign to get the Ontario Government to address the barriers that people with disabilities are facing during the COVID-19 pandemic. Today’s new interview provided a good opportunity to bring viewers up to date, with a specific focus on the hardships facing school-age students with disabilities.

Help us use this broadcast to promote real change. Please

* Encourage your friends and family to watch this interview.

* Promote this interview on social media like Twitter and Facebook.

* Press members of the Ontario Legislature to watch this interview.

* Urge your local media to cover this issue too. Bring them stories about barriers facing students with disabilities in Ontario’s schools.

* Follow us on Twitter: @aodaalliance. On Facebook: www.facebook.com/AODAAlliance/

 

* While you’re at it, please encourage parents and guardians of students with disabilities to watch the captioned online video by AODA Alliance Chair David Lepofsky where practical tips are given on how to effectively advocate for the needs of students with disabilities in the school system. We’ve already received very encouraging feedback on that video. Tell your school board to publicize it to all parents.

There have now been 677 days, over 22 months, since the Ford Government received the 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 still announced no comprehensive plan of new action to implement that ground-breaking report. That makes even worse the serious problems facing students with disabilities during the COVID-19 pandemic, addressed in this new episode of The Agenda with Steve Paikin.





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What Did Disability Advocates Tell Canada’s Parliament 40 Years Ago This Fall to Help Win an Historic Amendment to the Charter of Rights to Protect Equality for People with Disabilities?


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/

What Did Disability Advocates Tell Canada’s Parliament 40 Years Ago This Fall to Help Win an Historic Amendment to the Charter of Rights to Protect Equality for People with Disabilities?

December 7, 2020

            SUMMARY

Let’s take a cool stroll down disability rights advocacy memory lane going back four decades! Today, we make public a real treasure from the history of the ongoing non-partisan campaign for full accessibility, full participation and full inclusion of people with disabilities in Canadian society! These events still resonate to this day.

In this Update, we reach back to the incredibly uphill but ultimately successful battle in the fall of 1980 to get equality rights for people with disabilities entrenched in the new Canadian Charter of Rights and Freedoms that Parliament was then considering for inclusion in Canada’s Constitution. In October 1980, Prime Minister Pierre Trudeau introduced a bill into Parliament that would bring Canada’s Constitution home from England, and add a new Charter of Rights to it. The proposed Charter of Rights was to include an equality rights provision, section 15. However, the wording of section 15 did not include equality rights for people with disabilities. Unless amended, it would have been impossible for courts to add disability protection to section 15 by judicial interpretation.

A number of organizations and individuals came forward in the fall of 1980 from the disability community to call for the Charter of Rights to be amended, before Parliament passed it, to add equality for people with disabilities to section 15. During public hearings in Parliament on Canada’s Constitution in the fall of 1980 (the first Committee hearings in Canada’s Parliament ever to be televised), only three disability organizations got the chance to make presentations.

This Update gives you the chance for the first time to now read those three presentations all in one place. Below we set out the official transcripts of the presentations that were made by the three disability organizations that were given the opportunity to address the Joint Committee of the Senate and House of Commons that held hearings on the proposed patriation of Canada’s Constitution.

  1. On November 21, 1980, the Joint Committee heard from the Canadian Association for the Mentally Retarded. That organization was later re-named the Canadian Association for Community Living. More recently it has adopted the Name Inclusion Canada.
  1. On November 25, 1980, the Joint Committee heard from the Coalition of Provincial Organizations of the Handicapped (COPOH). That organization is now known as the Council of Canadians with Disabilities (CCD).
  1. On December 12, 1980, 40 years ago this upcoming Saturday, the Joint Committee heard from the Canadian National Institute for the Blind (CNIB). Its lead presenter was David Lepofsky, then a law student, and now chair of the AODA Alliance.

Despite these presentations, the Federal Government initially resisted adding disability equality to the Charter. However, our community persisted. Eventually, the disability amendment was unanimously added to the Charter before Parliament passed it in 1981. The only right to be added to the proposed Charter of Rights during all those weeks of proceedings in Parliament was equality for people with disabilities.

There is much more to this story. The winning of the disability amendment was due to the efforts of many. If you want to learn more about this history, which underpins all our disability accessibility advocacy to this day, check out a captioned video of a talk by David Lepofsky, where he recounts the history of the successful campaign in 1980-81 by diverse disability organizations to get the disability amendment added to the Charter of Rights. A captioned video of the December 12, 1980 presentation to the Joint Committee of the Senate and House of Commons by a much younger David Lepofsky, then a law student, on behalf of the CNIB is also available online.

“Our tenacious battle for accessibility and inclusion for people with disabilities has come a long way over the forty years since then, on a journey we certainly could not have imagined in 1980,” Said AODA Alliance chair David Lepofsky. “In the fall of 1980, we had little hope of success, but combined efforts from disability advocates did succeed. Since then, we have continued to face many similarly uphill battles, with it each time appearing that we have little chance of succeeding, but we keep up our unstoppable efforts and we keep blazing forward.”

We welcome your feedback on this trip down memory lane, or on anything else to do with the non-partisan campaign for equality for people with disabilities. Write us at [email protected]

            MORE DETAILS

Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on the Constitution of Canada RESPECTING The document entitled “Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada” published by the Government on October 2, 1980

Joint Chairmen:

Senator Harry Hays, P.C.

Serge Joyal, M.P.

 1. November 21, 1980

 

The Joint Chairman (Mr. Joyal):

It is my pleasure this morning to introduce [Translation] Mr. Paul Mercure, President of the Canadian Association for the Mentally Retarded, and Mr. David Vickers, Vice-President.

I understand that the Association has submitted a brief to the clerk of the committee and that it has been distributed, I also understand that you have a short presentation to make before answering the members’ questions.

I see that you have another colleague with you at the table and I would ask the President, Mr. Mercure, to introduce him.

Mr. Mercure.

Mr. Paul Mercure (President of the Canadian Association for the Mentally Retarded): I would first like to thank the members of the joint committee for having given the representatives of the Canadian Association for the Mentally Retarded a few minutes of their precious time, despite the deadlines they are facing.

Our delegation includes, on my left, Mr. Dave Vickers, Vice-President of our association and a former deputy minister of Justice in British Columbia, whose young daughter is mentally retarded, and, on my right, Mr. David Lincoln, President of the People First group, which is based in Fort Erie, Ontario. This is a group of mentally retarded adults who are trying to get along on their own. Mr. Harvey Endicott, Co-ordinator of the Association’s legal services and resources, is also with us.

The purpose of the Canadian Association for the Mentally Retarded is to defend the rights and promote the interests of some 500,000 mentally handicapped Canadians.

It is a voluntary movement that includes provincial associations and some 40,000 members belonging to almost 400 local associations. Our brief should thus be corrected. We have 40,000 members throughout Canada.

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The Association’s main goal is to ensure that the rights of physically and mentally handicapped persons are respected and we have joined forces with other groups representing the handicapped.

Our Association is deeply convinced that all mentally handicapped people should live in society. outside of institutions which tend to alienate them. The integration process has begin throughout Canada and should be pursued on a long-term basis, Because more and more handicapped people are living in society, their rights must be protected.

Thanks to the efforts of our movement, a number of provincial and federal laws have addressed these questions. Our remarks this morning are based on decisions made at our general meeting, held in Toronto last June, and on previous general meetings which took a stand on the rights of the handicapped. At the June meeting, the Association was asked to promote the enshrinement of these rights in the new Canadian constitution.

This resulted in a special brief being presented to the special committee of the House of Commons on the handicapped and the disabled.

I would like to take this opportunity to say that I am happy with what we were able to accomplish with respect to that committee. Most of what we want to say this morning is contained in the preamble to a document published in October by the Special Committee on the Handicapped and the Disabled.

I would like to quote the third paragraph of the preamble, which reads as follows:

If Parliament decides to enshrine human rights in the patriated constitution. the committee feels that complete and equal protection should be extended to persons suffering from physical and mental handicaps.

We are asking that the rights of handicapped persons be protected in the new constitution.

The Association has not taken up position on how to patriate the constitution. We, of course, have our personal opinions, but we would rather the matter be dealt with by persons more qualified than us.

We want the patriated constitution to deal with the rights of all Canadians and give added protection to handicapped persons. who need it to be able to exercise their rights.

We are not asking for special rights, any more than we are in favour of special or segregated services, which we would like to see replaced. throughout Canada. by integrated services.

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What we are asking for is a place in society and the legal protection that handicapped people need to be able to exercise the same rights as other Canadians.

Before asking Mr. Vickers to give a more detailed account of our demands, I would like Mr. David Lincoln, who, as I said, is President of a group of mentally retarded people based in Fort Erie, to provide specific examples of situations that the group members have to deal with every day.

[Text]

The Joint Chairman (Mr. Joyal): Mr. Lincoln.

Mr. David Lincoln (President, People First): First of all. I would like to say that People. First is a self-advocacy group of mentally retarded persons helping each other.

l have a few examples here, like needing more funding for shelter workshops, more staff and better pay for handicapped people.

One incident that comes to mind is from Carleton Place where clients were getting 2 cents an hour for the work they were doing. We feel that we are accomplishing a lot by working and human rights should cover minimum wage for all handicapped, or humans, supposedly.

Another one is there should be more low-rental accommodation for handicapped persons and if they move into a place they should not be discriminated against because they are retarded. Most people would rather turn them down because they are mentally retarded, and they figure it would be a low cut in rent, but it is not happening.

The best part of all, we are Canadian citizens; we feel we should be a part of the Canadian citizens instead of feeling second class.

The reason we are called People First is it is very important for our rights to such opportunities to be protected in the Canadian constitution. Please do not ignore us. We are people who are Canadian citizens first and handicapped second.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Lincoln.

Mr. Vickers?

Mr. David Vickers (Vice-President, Canadian Association for the Mentally Retarded): Mr. Chairman and Members of the Committee, we are here this morning to discuss with you a question of values. We are speaking of the value that will be placed upon the lives of our sons and daughters.

We are speaking to you about the value that will be placed upon the lives of thousands of Canadian citizens; these Canadian citizens living with a handicap, whether real or perceived.

Our plea to you is not a plea for special rights. Our plea as advocates of people with a handicap is that they too will be afforded the full opportunity that attaches to their Canadian citizenship: in short, a plea that they will not be forgotten in

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the new Bill of Rights so that they may become, as David has just said, Canadians first and handicapped second.

We ask you to pause for a moment, if you will, to consider the needs of an average Canadian citizen. Think of your own needs and how they have been met throughout your life. Canadians who are handicapped are no different in that regard than you or I. To achieve the limits of their potential they require, first of all, the ability to live, and in particular adequate health care.

Second, they require an appropriate education in the least restrictive alternative.

Third, they need appropriate vocational training and thereafter appropriate vocational opportunities.

Fourth, they need appropriate residential accomodation, again in the least restrictive alternative.

Fifth, they need appropriate recreational and social opportunities.

Antidiscrimination clauses in charters and human rights codes contains statements of conduct that is prohibitive. In addition to such statements of prohibitive conduct, our association favours a statement of positive rights. We say that those values to which we all subscribe as Canadians can be and ought to be stated as basic conditions of social, economic and cultural rights in Canada.

Unfortunately time has not allowed us to conduct an exhaustive study in that regard. In the preparation of our brief we have strived to return to the basic question, what are those values to which we can subscribe and how can they be entrenched in a charter of rights within the Canadian constitution?

Therefore we had reference to the International Covenants Board on Human Rights. These United Nations Covenants have been subscribed to by Canada and the provinces.

We are told that the ratification of these convcnants. the appointment of a Canadian representative to the Human Rights Committee and the subsequent ratification of the optional propocol remain today as a shining example of federal-provincial co-operation.

Therefore, since August 19, 1976 when the document came into effect, we have had a set of international values to which we could refer when considering the very issues which are before us today.

The first of these covenants deals with economic, social and cultural rights. the second with civil and political rights. Our list which was taken from these covenants is found at page 2 of our brief.

From the second covenant, Article 6 and the first convenant, Article 12, we have extracted the right to life and the right to health care. The remainder are all taken from the first covenant and include Article 11, the right to adequate food, clothing and housing; Article 10, the right to protection and assistance of the family; Article 13, the right to an appropriate

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education; Article 7. the right to an opportunity to work, and just and favourable conditions of work; Article 8, the right to participate in trade unions and Article 9. the right to social security.

It is essential that we take just a moment to say a few words about the right to an appropriate education. Many Canadians who are handicapped are denied this basic right referred to in the International Covenant and subscribed to by Canada and the provinces. It is fundamental to the growth and development of all persons that they receive an appropriate education in the least restrictive environment. It is more than interesting to note that Section 23 of the proposed constitution act 1980 provides and I quote:

the right to have their children receive their primary and secondary school instruction in that minority language if they reside in an area

And so on. Surely, there is a missing link in the logic of this section. There is indeed the need to entrench the right to an appropriate education and thereafter to deal with the equally important question of minority language educational rights. Without the entrenchment of that value, the right to an appropriate education, Canadians who live with a handicap condition are at the outset denied the means of access to many of the benefits of Canadian society.

We recognize that it is an imperfect world. Achieving a consensus on a host of positive rights may be difficult, but nevertheless worthy of the great past which is yours at this moment in our history.

There remains the need for an antidiscrimination clause such as Section 15; however, we wish to convey to your Committee the urgent necessity to add to the specific grounds, and I quote:

“handicapping condition”, whether physical or mental

The year 1981 will be International Year of the Disabled. It would be an appalling commentary on our Canadian values if we failed to entrench in that year, in our new constitution. protection for all Canadians who live with a handicap whether real or perceived. The usual objection raised to inclusion of handicapped as a prohibited ground of discrimination is that such a measure might obstruct programs designed to remedy the effects of the long history of negative discrimination. We believe that the usual exceptions to affirmative action programs can relieve this concern. And you have dealt with that in the subsection to Section 15.

There is a second objection from those who say that in order to benefit from antidiscrimination clauses a person would first have to identify himselfor herselfas handicapped. This objection can be overcome if the terminology used is defined broadly, such as we find in a definition of “handicapped person” which can be found in the US. Rehabilitation Act of 1973. There “handicapped person” is defined as any person who has (a) a physical or mental impairment which substantially limits one or more of such person’s major life activities; (b) has a record of such impairment. or (c) is regarded as having such an impairment.

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It is noteworthy that particularly under subsection (c) of this definition the focus is clearly on the act of discrimination rather than on whether the person discriminated against can be fitted into the protected category. That is the essential purpose of the statutory definition.

In summary, Mr, Chairman and members of the Committee, our Association urges this Committee to consider enlarging the statement of positive rights for all Canadians and to consider in particular those economic, social and cultural rights which today form the foundation of our Canadian society.

Finally, we join with many other Canadian organizations and ask that the words “handicapping condition, whether physical or mental”, be added to the list of prohibited grounds ofdiscrimination found in Section 15. Thank you.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Vickers.

The honourable Walter Dinsdale.

Mr. Dinsdale: I should like to welcome you three gentlemen who have so effectively represented the cause of the mentally handicapped community in Canada. I am sure you are aware that we have a Special Parliamentary Committee on the Disabled and the Handicapped that has been in action now for almost six months; on the basis of our investigation, we quite soon came to the conclusion that one of the areas of rather tragic neglect so far as human rights are concerned, was that of the mentally handicapped citizens, including both the mentally ill and the mentally retarded.

We had an opportunity to see the people first in action in some of our hearings, and I think members of the Committee will be quite impressed when I tell you that one of the most effective presentations was done quite spontaneously without the benefit of notes by one of your representatives in Vancouver who tried to define mental retardation and this is Brian I am speaking of: he said, “I am mentally retarded”, and he tapped his forehead, and said “That means that I think a little slowly”, then he paused rather dramatically and said: “I know some politicians who suffer from the same disability”. It is obvious from your presentation here this morning that this is the case.

We were so much concerned that our Special Committee produced an Interim Report, I presume you gentlemen have seen that report. One of the statements was to the effect:

Should it be the will of Parliament to entrench human rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicap.

There has been no protection at all, Mr. Chairman, other titan the United Nations Human Rights Charter to which we have subscribed; but there is no protection in terms of meeting the needs of the mentally handicapped.

Now, having said that. Mr. Chairman, I wonder ifwc could get down to specifics and ask the people who are representing the mentally retarded this morning, if they feel that Section

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1—and this has become a big issue during the course of the hearings of this Committee—abrogates the rights that are guaranteed in Section 15 of the bill. I presume the witnesses have the resolution before them. I think this is a fundamental point, because it is quite clear today, Mr. Chairman, that there is discrimination against the handicapped, particularly the mentally handicapped.

It is not an accepted body of thought that the mentally retarded, in particular, should have all the rights under a Human Rights Charter. Are the two in conflict?

Mr. Vickers: Mr. Chairman, my own personal view is that it is giving with one hand and taking away with the other. We have not addressed ourselves specifically to that question. feeling it was our mandate to address the issue of entrenching rights for handicapped people.

But, looking at Section 1, and speaking with my legal hat on for one moment, if I may, it appears to me to be giving with one hand and taking away with the other.

Having read, for example, Mr. Fairweather’s comments before the Committee. I am bound to say I subscribe to what he has had to say about appropriate amendments to that section. I feel it does need some work.

Mr. Dinsdale: Mr. Chairman, do I take it that Mr. Vickers is saying that there is a direct contradiction. He has not quite phrased it that way, but the two nullify one another in effect. is that correct?

Mr. Vickers: Yes, I agree with that. One seems to offset the other.

Mr. Dinsdale: We, in our Interim Report, recommended very strongly that the Charter of Human Rights or the Human Rights Act, in other words, should embrace all the rights that are in the Human Rights Act for the handicapped. Do you think this adequate human rights protection for the people you are representing here this morning? We have a human rights act which was passed in 1977. At that time public opinion was such that the only right that was enshrined in the human rights act—just three years ago, which goes to show how slowly we learn—was the right to employment.

There were numerous arguments put forward at that time to the effect that the human rights act could not go further. We do not propose to outline them here, even though this was the limitation of rights so far as the handicapped was concerned, it did not even embrace the mentally handicapped community, even so far as rights of employment are concerned.

Now, if we were to proceed on the basis of the recommendation of the Special Committee—and it is an action-oriented Committee, I can assure you gentlemen—and have the Canadian Human Rights Act amended so that the handicapped community were covered completely by that act, would it be sufficient so far as meeting the needs of the people you are representing this morning is concerned?

Mr. Vickers: Again, I come back to the basic value question. I am thinking in terms of vocational and residential opportunities, and in particular, educational opportunities, if

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they are, indeed, basic Canadian values, then I would argue that they ought to be entrenched with the Bill of Rights and not placed simply within the human rights legislation which can be amended by Parliament at Parliament’s will.

So that if you are talking about basic questions of value. speaking as a Canadian and as an advocate for handicapped people, I would argue that those basic values ought to be entrenched within the constitution and not placed necessarily within the Bill of Rights. A Bill of Rights is a second prize. We have never had any prizes for our handicapped friends, and if we are to take anything, obviously we would be prepared to accept amendments to the federal code.

On the other hand, it is still a second prize so far as we are concerned. The people for whom we advocate are now entitled to a few of the first prizes.

Mr. Dinsdale: You mentioned in your presentation—a vitally important point—access to education and training. We discovered, as we met with 600 people across Canada, that the area of learning disability is totally limited in its services in Canada, and this affects the area of the mentally retarded, in particular.

And the theme is that this has been a good year in Canada for the disabled. We have had the World Congress in Winnipeg and we are coming into the Year of Disabled 1981, and our report will be tabled to coincide with the Year of the Disabled. A theme of the report will be deinstitutionalization, getting the disabled out of what we call human warehouses where the care is merely custodial and where there is no provision for recreational, educational and transportation and all the other vital services that are needed to meet the needs of the disabled community. All this has to it an economic factor as well. lt is tremendously expensive—custodial care without any rehabilitation.

So if Parliament enshrines, as you are recommending, a Charter of Rights for the Disabled in specific terms, and if we got rid of the conflict between Sections 1 and 15, do you think it would be helpful in encouraging this process towards deinstitutionalization?

Mr. Mercure: Yes, we believe that type of protection would help our local association to make sure that the specific rights of individuals are protected. This would help us to create services within the community.

This is the reason why deinstitutionalization takes a very long time to accomplish, because most professionals, even most governments. address themselves to deinstitutionalization, but we cannot accept these people within the community without support services, which, in the long run, could be a lot more effective. and sometimes even less costly to the community as a whole.

More than that, we believe that any segregation for any group increases very rapidly the difference in behaviour and also it is a fundamental question of value in our society to accept the human person as he or she is, not to separate or segregate any group.

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The mental retardation people have not been segregated for a long period of time. It is only in the last 100 years that that problem has arisen from the industrial era. Mentally handicapped people used to live within the community before.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Dinsdale.

Mr. Young.

Mr. Young: Thank you very much. I also want to thank you for appearing before the Committee and presenting such an excellent brief. I am also a member of the Special Committee on the Disabled and the Handicapped, and over the summer months, we had over 400 witnesses who made presentations to that Committee and without exception, everyone argued that disability and handicap should be included in any new charter of rights and freedoms.

I want to center on one specific area, immediately, because, to me, it indicates not only society’s attitude towards the disabled and the handicapped, but it is certainly a crystal clear example of the court’s attitude towards the disabled and the handicapped, and particularly mentally retarded individuals.

I want to spend a few minutes, if I may, on Section 7 of the proposed charter, legal rights. and to try and tie it into the absence of any provisions for the disabled and the handicapped under Section 15.

Under Section 7 of the proposed charter it is stated:

  1. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof

We have, under the Criminal Code, provisions at the present time, to issue a Governor General’s Warrant under that particular code, and I am advised as of June 1980 there were 834 individuals who were confined to psychiatric institutions after having been charged with a crime of some sort, and after being assessed by a review board of psychiatrists and lawyers, were declared not to be fit to stand trial.

As I say, there are over 800 Canadians who are confined to institutions who have not been tried, and who, in the case of the mentally retarded individuals, in all probability, will never be fit to stand trial.

There is one case in particular I want to raise with you and that is the one concerning a man by the name of Emerson Bonnar who in 1964 was charged with attempting to steal a woman’s handbag.

He has been confined in an institution in New Brunswick— and it is a maximum security institution, as I understand it— since 1964, because the Review Board does not consider him to be fit to stand trial.

In your opinion, in the absence of any specific mention of the disabled and the handicapped under this proposal and the definition under legal rights, would this at this stage help a person like Emerson Bonnar?

Mr. Vickers: I am not sure that would. I am very familiar with the Bonnar case. That case is a classic example of somebody having been labelled early on and having that label

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remain on his back throughout his life. He has been labelled “mentally retarded” and “violent” and all the evidence which existed in 1964 and which exists today is contrary to that.

The evidence is that he is not violent. He is yet to be tried for the act of purse snatching. In my submission—and I have said this elsewhere—it is a classic example of the abuse of the criminal justice system. Whether the members of the community know it or not—and Mr. Dinsdale raise the question of the learning disabled—75 per cent to 80 per cent of the youngsters we have in the juvenile justice system are children with learning disabilities, to come back to the educational point. We know that. The jury have been inon that for ten or 15 years.

If the statistics below the border from the President’s Committee on Retardation were to carry through in this country— and I suspect they would-approximately ten per cent or better of the adults in the criminal justice system are mentally retarded people. I think it behooves us to recognize these statistics and to deal with the problem as a basic problem in terms of fundamental rights, rather than in terms of the criminal justice system.

Would it not be better, for example, to enshrine the positive rights of education in a bill of rights, and the right to vocational training so that these people can find their appropriate niche in life working in the community as substantial citizens rather than serving out their lives in a maximum security institution for, in the Emerson Bonnar’s case, the criminally insane?

There is no doubt that recommendations have been made for the amendement of Section 543 and onwards of the Criminal Code, both by the national Law Reform Commission and our oganization made recommendations some six years ago in terms of amendments to that provision, and the fundamental flaw lies in the provisions of the Criminal Code.

I do not deny that appropriate amendements in this bill of rights would be of some assistance. Undoubtedly Emmerson Bonnar has been deprived of his liberty for 14 years according to the principles of Canadian justice and the Canadian Criminal Code. Now, whether they are fundamental justice principles or not is perhaps a rhetorical question when you look at the result.

I would hope that Emmerson Bonnar, and our Association has become an advocate for Emmerson Bonnar and is taking today and continues to take steps to have his status corrected, but any help that we can get, whether that be through amendments to the criminal code or amendements by way of entrenching in a charter of rights would be most helpful.

The Joint Chairman (Senator Hays): Thank you. Mr. Young, your last question.

Mr. Young: Out of those 834 individuals who are confined in those institutions without benefit of trial, have you any knowledge of the numbers of that 834 who are mentally retarded.

Mr. Vickers: No, I cannot speak to those numbers but we are presently doing a survey throughout Canada with the

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co-operation of the provincial authorities to try and determine that. I can tell you of my own experience when I was with government. The number in British Columbia in 1974 was 120 people.

We had at close look at what we thought were people who were inappropriately placed and by simply taking a close look at what we thought were inappropriate placements, within a short period of time we reduced the numbers from 120 down to 80, and that is with a very superficial, cursory look.

Now, I am not sure what the numbers are in British Columbia today, but i know for example there was a case in British Columbia of a young native Indian person who had been incarcerated there for three years without trial and his own only offence was that he had been public nuisance by throwing a brick through a store window. It is those cases of abuse which I think we could surface many hundreds if we were to look case by case at each individual situation across Canada, and it is that type of research we are trying to conduct right now. I suspect that it would be somewhere in the neighbourhood of perhaps 15 to 20 percent.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Young. Senator Lapointe.

[Translation]

Senator Lapointe: I would first like to congratulate Mr. Mercure and his colleagues, in French, on their excellent and enlightening brief.

I am very sorry that one of the most active members of the Special Committee on the Handicapped, Mrs. Thérèse Killens, is not here this morning with Mr. Dinsdale and her colleague from the New Democratic Party, but I will do my best to fill in for her, since I too am very interested in your cause.

You say, Mr. Mercure, that you fully support the Charter of Rights, basic rights, democratic rights, mobility rights and language rights. Do you not?

Mr. Mercure: Yes.

Senator Lapointe: One issue that seems to be of concern to you, and which my colleagues did not refer to, is the right to join a trade union.

Could you tell us whether the unions themselves are reluctant to let you join, or whether this is based on existing legislation.

Mr. Mercure: There are cases—and I will ask Mr. Vickers to provide details—where employers . . . In Quebec. the Bureau for the Handicapped is trying to increase the number of jobs available to the handicapped and the mentally retarded.

There have been several cases involving handicapped persons where an attempt has been made to have jobs considered as being suitable for the handicapped, but union rules, particularly with regards to seniority, have prevented this front being done.

There was, for example, darkroom work for the blind. We wanted photography companies to give blind people priority

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for darkroom work and the request was turned down by the unions. This is the type of thing that is related to the union membership issue.

Maybe Bill could complete my answer.

[Text]

Mr. Vickers: My experience with the trade union movement is no different than my experience with any community organizations, whether they be private or public organizations. It is largely a question of attitude, and given the opportunity and shown that the opportunity exists for handicapped people to work, I have found, certainly with the trade union people that I have spoken to, a willingness to venture into what is a new area.

I have no faults to lay with anyone. It really begins at an early age and that is why appropriate education is so important because if you and I had the opportunity to be educated side by side with a severely, profoundly handicapped person, our attitude today might not be to see that person as a handicap and to feel pity and remorse but to see that person as a whole person, as somebody that can contribute to our Canadian society. My experience with the trade union people, certainly on the west coast, is that when I have raised those kinds of issues they are no different than you and l and they begin to see what they can do.

Now, like employers and like public and private organizations, they are a long way away from actually accomodating the needs of our handicapped friends. That is why to entrench the value is simply to signal, if you will, to the trade union movement that all people, including handicapped people, have that as a basic Canadian right and that is why it is important. it is a beacon, if you will, and it affords our people the opportunity for vocational experiences which they heretofore have not had an opportunity to grasp.

Senator Lapointe: You said that you would like to see the minimum wage mentioned in the charter?

Mr. Vickers: I do not think one would deal with minimum wage per sc in the charter. i think what we are talking about in the charter is the opportunity for vocational training and vocational opportunities. David’s point was that there are people making two cents an hour in workshops, and I know of workshop situations on the west coast where people are making a dollar a week or things of that sort.

Now, it is time that those workshop opportunities be seen not as opportunities but as situations which keep handicapped people in a demeaning way of life. What we are talking about is not affording more workshop opportunities; we are talking about affording vocational opportunities where people can earn, not be given but earn a wage, and at the very minimum the minimum wage and we know of situations where those opportunities have occurred and people have gone off, if you will, on welfare and have become citizens supporting themselves and their family and community. So we are not asking for anything special, we are simply asking for the same opportunity as other Canadians, so i think that is the point.

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Senator Lapointe: I see that you say in the province of Quebec they have a clause to protect the handicapped and you seem quite satisfied with this clause. Would you like to add something to it or to have it as it is in the Quebec government’s human rights?

[Translation]

Mr. Mercure: Bill 9, of course, as well as the L’Office des Handicapés au Québec have been a major step forward for the protection of the rights of handicapped people in that province. I believe this legislation is considered as a very progressive one and that several other provinces are considering implementing something similar. As far as we are concerned, what we want is a greater protection than just a legal one. in other words, we would like this protection to be enshrined in the Constitution, because, even if Section 1 is modified, it would probably afford greater protection than the one offered through a regular legislation, because the government would not be able to change it very easily. It would have to meet the special requirements established for amending the Constitution. I would like to add that people in Quebec are beginning to live with these new rights and the work of our local associations is specifically to make sure that these rights are actually implemented in the daily life of handicapped people.

[Text]

The Joint Chairman (Senator Hays): The last question, Senator.

Senator Lapointe: Yes. Are you satisfied with the report of the Committee on the disabled when they say that full and equal protection should be provided for persons with physical or mental handicaps? You are satisfied with the declaration and you think it is encouraging?

[Translation]

Mr. Mercure: Yes. We mentioned, at the beginning of our testimony, that we were very pleased to have obtained this statement. However, it is still a very general statement and it will have to be specified, later on. The third paragraph of the preamble of the report, which i read a while ago, seems to us to be very satisfactory.

[Text]

The Joint Chairman (Senator Hays): Thank you very much, Senator Lapointe. We have one more speaker, Mr. McGrath.

Mr. McGrath: I can be very brief, Mr. Chairman. I realize we have another witness; is that correct?

The Joint Chairman (Senator Hays): Yes.

Mr. McGrath: I would not want to keep the Manitoba witnesses waiting any longer because they are going to have little enough time as it is so i will get very quickly to my question.

l was struck by the question of my colleague, Mr. Dinsdale, with respect to the deinstitutionalizing of mildly mentally retarded people. l know that this is something that is happening across the country and indeed it is happening in Ontario. I know of course you are familiar with the Welch Green Paper, Community Living for the Mentally Retarded. I know it is happening in my own province, but something else is happen-

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ing with that which disturbs me and I would like to hear how your association feels that this problem can be addressed by specifying handicapped rights within the charter, and that is what seems to be a propensity on the part of municipalities to legislate against group homes, in other words we take the mentally retarded out of the institutions and get away from the Bedlam psychology that still prevails in Canada in terms of our treatment of the mentally retarded. put them in homes so they can lead normal lives and we can treat them as human beings, and we come up against this roadblock of the municipalities trying to protect, I suppose, the best interests of their ratepayers and their neighbourhoods although I can not see how that would be any treat to neighbourhoods or ratepayers, but that is the situation I find developing and it has happened in my own area and I am sure it is happening across the country.

Mr. Vickers: Well, there is not doubt it is happening across the country and there is no doubt it is happening for a number of reasons.

The first reason it is happening, it comes back to the question of attitudes again and where do we begin to change attitudes, and my plea again is that we begin with our youngsters in school accepting the disabilities that our fellow Canadians have.

However, that does not take care of you or I who are aged and do not understand that people with disabilities are the same as us. One of the problems with respect, is the basic funding policies of provincial governments who will fund group homes of eight and ten people. and what we are talking about is a group home. a normal family environment and you know and I know that eight or ten people is hardly a normal family environment so there is a basic funding problem and if we could talk about funding homes of four or five or even six people. then our argument that we were in fact living in community as a family would be more viable. So that is the second problem.

The third problem is the problem of attitude and the problem of the inability to understand that these people have the right to live in community and live normal lives. There have been some recent encouraging decisions across Canada to assist us in this problem, the Bell Case in the Supreme Court of Canada, recently watered down slightly by a decision in the Ontario Supreme Court. We have had decisions made in British Columbia that take away the right of spot zoning in local municipalities, and where you deal with it I suppose is a structural question or an administrative question. It seems to me that if we are going to deal with it once and for all we have to come to grips with some more fundamental questions. attitudes, funding policies and things of that sort.

However, there is no doubt at all that what we are talking about as an association is community living for all Canadians. not just the mildly retarded. We are talking about community living for all Canadians.

The bill in British Columbia, for example. to keep somebody in an institution runs at $100 per day. We are talking about

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$36,000 per year to keep somebody in an institution without any program and without any opportunity for an adequate social life. We think that those kinds of people can be brought back into the community and be made a part of our community and be given opportunities to thrive within the community for far less money.

Now, there may be transitional funding problems but when the bottom line is looked at, and we look at people. the value question is so important. These are Canadians and surely they have a right to get out of those institutions and live like you and I to the limit oftheir ability within their community.

Mr. McGrath: But my question was: can we legislate against these kinds of attitudes in an entrenched bill of rights?

[Translation]

Mr. Mercure: The situation varies from one part of Canada to the other.

I would like to point out to the committee that in Quebec, under a provision of Law 9 that was lobbied for by our association, no legal action can be taken under zoning regulations to prevent a group home from opening in a community.

In Quebec, then—and I believe Manitoba has a similar regulation—no one can take legal action to prevent group homes for the handicapped from operating, no matter what the zoning regulations are.

It is a provincial law.

[Text]

Le coprésident (sénateur Hays): Thank you very much. Mr. McGrath.

We appreciate your being here this morning, Mr. Mercure along with Mr. Vickers and Mr. Lincoln.

We have your brief and we will consider it very, very carefully, I am sure the Committee will at the time we are reporting.

We appreciate you being here, thank you very much.

[Translation]

Mr. Mercure: Thank you for your attention and we hope that your efforts will produce results.

The Joint Chairman (Mr. Joyal): Thank you. Mr. Mercure, Mr. Lincoln and Mr. Vickers.

 2. November 25, 1980

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

I would now like to ask the representatives of the Coalition of Provincial Organizations for the Handicapped to come to the table.

In particular, I would like to invite Mrs. Monique Couillard, Mrs. Yvonne Peters, Mr. Ron Kanary and Mr. Jim Derksen to take their place at the witnesses’ table.

[Text]

The Joint Chairman (Senator Hays): I wonder if the coalition of provincial organizations of the handicapped would please come forward. You may proceed, Mr. Kanary.

Mr. Ron Kanary (Vice-Chairman, Coalition of Provincial Organizations for the Handicapped): Thank you, Mr. Chairman. On behalf of the Coalition of Provincial Organizations of the Handicapped, I would like to express our appreciation for this opportunity to participate in what we believe is one of the most important deliberations in Canadian constitutional history. Our National Council is pleased to be represented here today by this delegation representing all our members and associates across Canada, united in determination to see the rights of disabled Canadians recognized in the constitution.

The Coalition, as some of you may know, is a national alliance of nine independent provincial organizations of variously disabled persons functioning democratically so as to represent their views and concerns. At the local level, these nine provincial organizations encompass about 80 chapters representing some 15,000 to 20,000 disabled Canadians.

We gladly endorse the constitution of Canada and whole-heartedly welcome entrenchment in the constitution of a Canadian Charter of Rights and Freedoms.

However, we believe there are several amendments which should be made to the proposed Charter. Of most importance to disabled people in Canada is that disability or handicap should be included as grounds protected from discrimination under Section 15(1) and we recommend this amendment to you.

We recognize and thank members of Parliament, Peter Lang, Therese Killens, David Smith, Stanley Knowles and Neil Young, who spoke for this amendment during the House of Commons debate prior to the striking of your Committee. The all-party House of Commons Special Committee on the

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Disabled and the Handicapped in its first report to Parliament in October of this year stated:

Should it be the will of Parliament to entrench Human Rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical and mental handicaps.

Chief Commissioner Gordon Fairweather, in his presentation on behalf of the Canadian Human Rights Commission to your Committee, said any list of prohibited grounds of discrimination in Section 15(1) is incomplete and does not offer adequate protection if it does not include physical or mental handicap. The presentation of the Canadian Jewish Congress to your Committee last week also called for this amendment. The Royal Canadian Legion and the Canadian Labour Congress, we are pleased to know, also support our position; and most likely, many more who will come before you will.

This level of support for our inclusion in the non-discrimination rights section of the Charter demands that the objections to this amendment cannot be vaguely stated, drafting or definition concerns as at present; surely this level of support demands that objections to the amendment must be clearly demonstrable and justifiably sound ones.

The growing awareness and concern about this in society is based on a true understanding that disabled people are a minority who have suffered discrimination which has limited their participation in society and who therefore. require protection of the law. This social understanding calls on you to include disability or handicap as a prohibited ground of discrimination in Section 15(1) of the proposed Canadian Charter of Rights and Freedoms.

There are three kinds of advantages in amending the Charter to include protection for disabled people.

Firstly, constitutional protection of the rights of disabled people would give high symbolic profile to the social concern to recognize and protect these rights. It would set the tone for an improved future. When we are denied service in a restaurant simply because of our blindness, or employment because of deafness, or housing because of a spastic movement disability, we are often injured twice—once by the act of discrimination itself and again by the shocking realization that the state offers us no protection from such discrimination. This situation still pertains in three provinces of Canada; in the other seven provincial jurisdictions, the provinces have taken, to various degrees, a leadership role in providing human rights protection. It will be a profound joy in such circumstances to substitute, for the helpless feeling of being relegated to the refuse. as if with no value or right to expect better than the prejudice or discrimination offered to us in the past, the reassuring knowledge that we are protected from such prejudice and discrimination by the Canadian constitution.

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The Canadian Charter of Rights and Freedoms will articulate the most basic and cherished values of our society and place them in the basic legislation of the land. This alone will set a new tone which of itself will do much to redress the injuries of exclusion and prejudice that have been our inheritance.

Secondly. the inclusion of disability as a prohibited cause of discrimination. as it applies to the substance of the law, will do much to change existing laws at municipal. provincial and federal levels which do discriminate against disabled people. A good example of such a needed change is the legislation which denies disabled people the protection of minimum wage legislation in various provinces and in the federal labour code.

No longer will we remain the only category of adult Canadians whose labour and productivity cart be bought for twenty-five cents a day and less. Lest this example should be misunderstood, the constitutional change we recommend to you will not mean that all centres offering daytime activity for disabled people will be required to pay minimum wages. but it will mean a distinction will have to be made between daycare. activity centres where people do not work and which are therefore exempt from minimum wage standards. and settings where people work which will be subject to such standard protections from exploitation.

The amendments we are recommending to you would also help preclude any future legislation at municipal. provincial or federal levels which would discriminate against disabled people. Forty years ago Nazi Germany enacted legislation which called for compulsory sterilization of certain disabled people in the name of racial eugenics. Other disabled people were murdered although the word used was euthanasia. Even today in this country. compulsory sterilization is sometimes talked about for certain disabled people and the Ontario Association for the Mentally Retarded is required to have a public policy against any form of passive infant euthanasia.

The Canadian Jewish Congress, in its presentation to you a week ago today. speaking for the inclusion of handicap in Section 15(1) referred to a brief they submitted to the Special Parliamentary Committee on the Disabled and Handicapped wherein they made the same recommendation. They said, in that brief. that the ramifications of our failure to firmly establish equal legal rights for our handicapped and of our near automatic exclusion of them from the mainstream, resulted in events in the not-too-distant past which still cast shadows over us dark enough to send cold shivers running through our souls.

For those of us who still remember, or who have taken the trouble to learn about it, it was in Hitler Germany that the retarded, the gypsies, the physically and emotionally handicapped. so easily became early fodder for the destruction machine.

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It is interesting how little is said about this dimension of the holocast. This neglect to recall or analyze this particular dimension of the holocaust gives us a frightening insight as to the state of our present moral crisis in respect to what we describe as ‘the disposables of our society.

We value the dignity of the individual and his right to life and security of the person, and have already articulated these values in our draft constitution Section 7. However, in light of history and the ongoing association with disability, of concepts such as racial eugenics and passive euthanasia, disabled Canadians deserve the same reassurance of the amendment we recommend to ensure

the right . . . to the equal protection from the law without discrimination because of. . . disability or handicap,

So that forty years from now such atrocities could not so easily be perpetrated in Canada. Disabled Canadians need to know they are secure from such dangers and that their fellow Canadians hold values which embrace the right to life and security of the person for everyone. including disabled people. The amendment we recommend would articulate and help preserve these most important values which are held by the Canadian people today.

The third general advantage that the inclusion of disability or handicap as a prohibited ground of discrimination would produce, as applied to the administration of the law. is to reinforce human rights protection as an ordinary legislation level. We have struggled for and achieved this in seven of the ten provinces, and have it at the drafting stage in the remaining three. This ordinary legislation level protection, through setting up Human Rights Commissions as courts of first recourse in matters of discrimination, represents the major means by which non-discrimination rights are implemented for the individual who experiences discrimination.

We agree with Chief Canadian Human Rights Commissioner Gordon Fairweather that the Charter of Rights and Freedoms should apply to both the substance and the administration of the law.

We believe that Section 15(1) of the proposed Charter will then make it possible for the decisions of human rights commissions to be appealed to higher courts on constitutional grounds. This will do much to improve the quality of protection on grounds which are listed in Section 15(1). The listing of disability or handicap in Section 15(1) then will be important to disabled Canadians as it will improve the protection already available at ordinary legislation levels.

The omission of disability as a listed category in Section 15 cl) would probably significantly damage the quality of protection already achieved at the ordinary legislative level for disabled Canadians. It seems obvious to us that once the Charter of Rights and Freedoms is in place, together with Section 15(1), human rights commissions, when allocating their necessarily limited staff and legal resources will give

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higher priority to complaints of discrimination on grounds which are listed in the constitution because of their potential for appeal to higher courts on constitutional grounds.

Hence, if disability is not among the listing in Section 15(1), complaints of discrimination on grounds of disability will be dealt with using whatever resources the commissions have left over after dealing with complaints on grounds which are listed in Section 15(1). Inadvertently, the Canadian Charter of Rights and Freedoms will create a first and second class of rights to protection from discrimination.

We believe we have a compelling case for the inclusion of disability or handicap as a prohibited ground of discrimination in the proposed Canadian Charter of Rights and Freedoms.

Mr. Chrétien indicated in your Committee meeting of Wednesday, November 12, in response to a question from Mr. Bockstael that the difficulty in adding “handicap” to the list of prohibited grounds was one of draftig a precise legal definition for incorporation into the Charter.

In our view, the Charter of Rights and Freedoms is not an appropriate place for definitions. Neither is it necessary to define disability or handicap or degree of these in the proposed Charter. We note that it has not been necessary to define “religion” in the Charter, despite the plain fact that we will continue to discriminate against religions which practice human sacrifice. We have prepared a rather lengthy document refuting this definitional and other objections to the inclusion of disability or handicap in Section 15(1). This is attached as an appendix to this brief and includes eight quite similar definitions presently found in non-discrimination statutes at federal and provincial levels. We have decided to separate this lengthy section from our presentation, but will be happy to

answer questions in this area or read our document into the record if desired.

Mr. Chrétien suggested on November 12 to your Committee, as had the Prime Minister earlier in the House of Commons, that the inclusion of disability or handicap in Section 15(1) should wait until it could be done in Canada by amending the patriated constitution, We wish to note that, indeed. the inclusion of the entire Charter could wait until such a time-but in fact as Mr. Chrétien indicated on page 77 of Proceedings for the Committee meeting of November 13, there are some reasons why entrenching a Charter of Rights and Freedoms for all Canadians should be done now. We believe these reasons also apply for the inclusion of handicap in Section 15(1) now, and not after patriation.

Mr. Fairweather and others have spoken to your Committee about the advantages of fitting the Canadian Charter of Rights and Freedoms to the international context including the international covenants Canada is party to.

We call your attention to the fact that Canada was one of fifty co-movers at the United Nations at the Universal Declaration of the Rights of Disabled People in 1976. Canada was also one of two co-movers of the resolution in the United

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Nations which established l98l as the International Year of Disabled Persons with the themes of full participation and equality. Including handicap in Section 15(1) of the proposed Charter would be a good demonstration that our domestic actions are in line with the policies we are promoting in the world.

As you can see by our delegation, disabled Canadians are also men and women, Mennonite, French. Irish. and so on; indeed disabled Canadians are all colours, races, religions and ethnic origins. For this reason, our concerns about the proposed Charter naturally go far beyond the inclusion of “handicap” in Section 15(1).

We have studied the whole of the Charter and the various recommendations and concerns that have been brought to your Committee. We find the package of recommendations brought to you by the Canadian Human Rights Commission overall of most value, and therefore, generally endorse and comment it to you.

We do this with only one caveat, that we prefer the Commission’s second option for the wording of Section 15. as found on page 5A:4 of the record of your Committee meeting of November 14, 1980 and listed on that page as point 2.4. The relevant parts of this then read:

15.(1) Everyone has the right to equality under the law and to equal protection of the law without discrimination on grounds such as . . . physical . . . handicap . . .

While our concern and recommendation to you can be reduced to the idea that “handicap” be included as a ground protected from discrimination, we also commend generally the Canadian Human Rights recommendations to you because we feel they have much merit overall, and because we feel the time has come to reach for a consensus and wish to contribute to this consensus process.

A constitution is most basic and fundamental legislation. As such it deals with basic and fundamental issues. The issue as to whether Section 15(1) of the charter of rights and freedoms in the constitutional bill should be amended to include “disability” is also a basic and fundamental matter.

Some disabled people in Canada apply the label TAB to Canadians without disabilities. TAB is an acronym for temporarily able-bodied and is used to remind society that disability is a condition which can occur to anyone at any time. at any level of society. Transport Canada’s demographic study indicates that 34 percent of all persons who reach the age of 80 are disabled in relation to mobility. It may be useful to think of the amendment we propose as a kind of insurance or assurance. It is in fact an assurance that the society we live in will continue to progress toward a society which is supportive and open to the continuted participation of people who are or become disabled. It is an assurance that in the event of disability, one will not be relegated to inferior education, low income and the poverty of eitperience and life style symbolized by the institutional residence and attached historically to the condition of disability.

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We who are already disabled know better than to imagine any legislation, even a constitution, is an instant cure-all for our problems. However, we do believe that the basic and fundamental legislation of a constitution must point to a new standard, and in a direction of orderly change toward that standard whereby the whole of society will benefit.

Thank you, Mr. Chairman.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Kanary. I shall ask the Honourable Walter Dinsdale to question the witnesses.

Mr. Dinsdale: Thank you, Mr. Chairman.

I would like to begin by welcoming the COPO delegation here this morning, Ms Peters, Mr. Kanary and Mr. Derksen, who, as we have heard in the brief presented, are providing and have provided very creative leadership in the campaign for a charter of human rights for the disabled.

I have only one comment to make about the brief. I notice in the names that you presented on the first page you excluded any reference to one party in the House of Commons and, Mr. Chairman, I can only say that is because we were working under closure and we were in the speaking line-up to take part in the debate that set up this committee and we did not have an opportunity to make our representations but I would say, Mr. Chairman, that I think it is well known that there has been a campaign going on in the House of Commons for at least a decade to set up a special parliamentary committee, and one of the key areas of concern was human rights for the disabled. I might say, by way of introduction, that since this special committee was set up just about a year ago now, there has been a marvellous change in the attitude across the country, in Parliament. to the Bill of Rights for the disabled.

I think you are aware, and this has not been mentioned in the brief, that Canada hosted the Rehabilitation international Congress for the Disabled in Winnipeg last June. That was a congress that was planned over a period of four years by the Canadian Rehabilitation Council for the Disabled and I think everyone will agree that its theme of integration had a profound impact on the media, on the press and on the people of Canada. and I am sure COPO will agree. too, that the theme we are espousing in our special committee on the disabled of de-institutionalization, getting the disabled into the community, integrating the disabled into the community, came to a head at that congress in Winnipeg.

Also, of course, Canada has been sponsoring the International Year for the Disabled. It was just a year ago that I had an opportunity to speak at the United Nations and one of the points that l made there at the time as a response to the IDYP Resolution was that human rights should be at the fore, it always has been at the U.N. since 1975, at the 30th Session of the General Assembly when the human rights code was passed, when the provincial governments responded and we had hoped that the federal government might respond in 1977 when the Human Rights Act was passed but, as you know. there was a considerable degree of reluctance at that time to embrace the United Nations code that does include most of the recommendations that you have made in your excellent brief here this morning.

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Well now, you have before you, and it has been circulated. the first report of the Special Committee on the Disabled and we have felt so strongly about the human rights issue that we have made a primary concern the recommendation that the Human Rights Act be amended as quickly as possible to include human rights for the disabled.

Having said that, Mr. Chairman. I would like to ask the witnesses this morning if they are as concerned as Mr. Fairweather, who is the Commissioner for administration of the Human Rights Act, if you are concerned as he was about the conflict as it was outlined in Section I of the resolutions that we are considering, which defines the guarantees of rights and freedoms subject only to such reasonable limits as are generally accepted in a free and democratic society with a parliamentary system of government. The point at issue is that it is only recently that there has been wide acceptance that the disabled should be included in a charter of human rights. Do you share the same concern as Mr. Fairweather that you can drive a truck through art article of that kind with respect to human rights?

Mr. Jim Derksen (Coalition of Prineial Organizations for the Handicapped): Well, Mr. Dinsdale. I would like to say first of all that we are certainly aware of our efforts on our behalf over the years and the efforts of many other people from the Conservative Party on the many fronts that are facing disabled people today. We did, however, confine our remarks in our brief to the issue of entrenchment of the Charter of Rights and Freedoms.

Mr. Dinsdale: This is what always happens under closure, Mr. Derksen.

Mr. Derksen: However, regarding Section I and the other recommendations that were made by Chief Commissioner Gordon Fairweather, we did agree that his alternate wording seemed to us. and we are laymen, a better safeguard or a better series of safeguards for the rights of Canadians overall and so we decided to give a general endorsation to his package of recommendations.

Mr. Dinsdale: I take it from that reply. Mr. Chairman, that you are satisfied that your amendment proposed for Section 15(1) would overcome the deficiencies of Section 1, that there would be no loopholes created as it result of the rather vague wording. This is the first section of a most important document, a very profound revision of the constitution of Canada and there are several authorities in the field of human rights that have focussed in on the deficiencies and the loopholes of Section 1.

Mr. Derksen: It did seem to us that the wording of Section 1 was unncessarily broad and perhaps covered too much of the Charter itself and that non-discrimination rights, as Chief Commissioner Gordon Fairweather recommended, should be exempt from Section 1, but should, rather, have a separate caveat in the form of Section 15(3) as proposed by the Human Rights Commission, which would enable a reasonable application of non-discrimination rights and a narrower interpretation than was made available through Section 1.

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Mr. Dinsdale: I would take it, Mr. Chairman, that Mr. Derksen and the others are in tune with the recommendation of our Special Committee, notwithstanding what might happen to the resolutions before us, that we proceed immediately with amendments to the Human Rights Act of l977. They were brought into effect only three years ago, Mr. Chairman, and I do not know whether you were in the House of Commons at that time, but you will remember the strong resistance towards general acceptance of the principle of human rights.

I presume that our witnesses are strongly in favour of the recommendations of our Special Committee which we have given high priority to by the very fact that we have issued an interim report before coming down with our final report.

Mr. Derksen: We are very pleased by the urgency indicated in the submission of the preliminary report on this matter. This matter of amending the Canadian Human Rights Act is not at issue in this Committee, however, but l should say that having pressed for this ordinary legislation amendment for many years. having received promises of support from both present opposition parties and a commitment in the Throne Speech from this government, we feel that this amendment is far overdue and is not really open to debate any longer. We are really only waiting very anxiously to see it done.

We are now concerned about the constitution and the inclusion of disability in Section 15(1), which we believe is a very important matter before the nation today.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Dinsdale. Mr. Young.

Mr. Young: Thank you, Mr. Chairman.

I, too, am a member of the Special Committee on the Disabled and the Handicapped and as you know we spent most of the summer months going across the country hearing deputations and witnesses, and by the time we were finished going across the country we heard from over 400 deputations, and without exception each one of those witnesses argued very strongly for inclusion of the disabled and handicapped in any human rights legislation. That is not surprising, I think, when you consider there are something in excess of 800,000 Canadians who are disabled or handicapped in one form or another, which totals about 10 per cent of the workforce and is probably in excess of that. At the present time under human rights legislation there is some protection against discrimination in employment and yet the evidence shows that out of that 10 per cent of the population there is still a 70 to 80 per cent unemployment level amongst the disabled and handicapped community.

I remember when we were in the United States we were told by both government officials and people from the disabled community that there was never a real commitment on behalf of government or its agencies or the private sector towards employment programs for the disabled and handicapped until

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amendments were made to their human rights legislation down there. It was only after these amendments were made that any real commitment came forward. Is that what you hope for here if those amendments are made to this legislation, that it normally increases public awareness and it forces government to give leadership to the private sector, in particular to employ disabled and handicapped people?

Mr. Kanary: Well, again, the amendment to the Canadian Human Rights Act, is that what you are referring to?

Mr. Young: Yes.

Mr. Kanary: Again, as Jim mentioned, as far we are concerned it is no longer up for debate, we are just waiting for it to come. However, the experience in the United States has indicated that constitutional protection is most essential to reduce; that 80 per cent unemployment rate to a reasonable figure.

Mr. Derksen: I would just like to add to that by saying that in America of course the Bill of Rights has been around for a long, long time, but it does not specify the number of minorities that have recently become discernible as needing protection. In America, in fact, it was the Rehabilitation Act of 1974, Section 504, which provided for non-discrimination of disabled Americans, and it was a very broadly-worded section, but the regulations that were subsequently written as to the implementation of Section 504 were very stringent and they resulted in dramatic kinds of changes, changes such that if I go camping in America I can count on an accessible washroom in every campground I get to; changes such that if I drive from Winnipeg, which is my home, the 80 miles to the border, I know there is not one deliberately accessible washroom on the way to the border, neither is there at Canadian customs, but as soon as l cross that invisible line there is a big sign, “Handicapped Parking”, and there is a ramp and there is an accessible washroom. I go to a small town of 500 people and I find that the town hall and the State building and what federal buildings exist in that small town are all accessible to me.

It is that kind of change that has occurred over six years that I think we hope for in Canada. This is not to say that it is going to happen immediately, but we hope there will be progress toward that goal and that in Canada the inclusion of disability in the constitution will set the kind of tone that will result in subsequent legislation and regulations which will give us that kind of access to opportunity.

Mr. Young: Well, we are not only talking about access to employment even though in all the preparations for 1981, including the work of this Special Committee, the evidence as I see it has certainly raised public awareness to the point, particularly in this year where there is an increasing number of cases coming before the Canadian Human Rights Commission from the disabled and handicapped community about discriminatory employment practices within government bodies and government agencies. We are also talking about equal access to services that we temporarily able-bodied people take for granted.

I used to think in this country that the rights to education were a principle, and yet we have experienced over the summer months, and in listening to people we have discovered that

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there are thousands of kids across this country who are disabled or handicapped in one form or another who are denied access to education, so we are not only talking about access to education, we are talking about accommodation, transportation and other goods and services that, as I say, we take for granted.

Would you like to comment on education in particular because it seems to me that that is a key area for the disabled and handicapped people. without having equal advantages in the field of education you are denied equal access to employment and a whole host of other services that there are in society.

Ms. Yvonne Peters (Coalition of Provincial Organizations for the Handicapped): I will just comment on that question. I think that what you have said is very true, that disabled people need to have equal access to education. Unfortunately, that is not always the case. There are not only architectural barriers that can get in the way, there are needs for facilities such as sign language interpreters for deaf people and access to Braille material and so on for blind people.

If we go back to the constitution. what we look to from the constitution is a document that will set a tone for disabled persons in this country so that we can build legislation, or at least use it as a foundation to build legislation so that we can start improving things like educational opportunities and we can start providing equal access in necessary facilities and so on.

Mr. Young: The one last area I want to touch on in particular is the whole area of de-institutionalization because I think probably in terms of society’s attitudes towards the disabled or handicapped people, it is reflected most clearly I think in how society views disabled or handicapped people.

In the past there has been a tendency to view someone who is disabled or handicapped as a sick person. and of course society keeps sick people in institutions, when the facts of life are that because you are disabled or handicapped does not mean you are sick; you are disabled or handicapped. And the thrust of governments has to be in the direction of assisting the disabled community to come out of institutions and to live as normal a life as possible within the community.

The Special Committee on the Disabled and the Handicapped have certainly developed that as a theme in our discussion.

Do you see that as playing an important role, not only in 1981 but beyond?

Mr. Kanary: Probably one of the basic reasons why young disabled people are institutionalized is that, first of all, are the attitudinal problem which has developed over so many years. Secondly, because of the lack of appropriate housing; that goes back to the accessibility problem.

As Yvonne has mentioned, we look to the constitution for a final recognition that disabled Canadians are in fact Canadians as well and that the constitution, hopefully, will set a mood so that we can become included in the planning and decision making process over the coming years; so that we could allow

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for adequate housing, and support services for individuals who require such services, and the many other services, accommodations and facilities which we are presently being denied.

We are looking for the constitution to set a tone so that changes may come about, not overnight but over a period of years, that we can become fully integrated and active and contributing as a force of people in society.

The Joint Chairman (Senator Hays): Thank you, Mr. Young.

Mr. Derksen, did you want to say something?

Mr. Derksen: I want to follow that up by saying that presently disabled people and their problems are often viewed through a very biased cloud of emotional responses. This has resulted in a situation which has become clear to the Special Comittee on the Handicapped and Disabled wherein the people are institutionalized at 20, 30 or 40,000 dollars a year, where they could be integrated in the community if they had, say, five thousand dollars worth of support services.

Now, it is economically sound to de-institutionalize most disabled people who are presently in institutions.

There has also been a kind of emotional reaction to our call for human rights based upon fear that human rights for disabled Canadians will somehow have a disruptive effect on our society.

We have shown in the appendix to our brief that that fear is really not based upon any sound reasoning, and that it is an unnecessary fear generated out of the kind of bias and emotion that people feel within themselves when confronted by disabled people.

What we need is a clear-minded, objective approach to our problems; and that approach, I would suggest, starts with an articulation that disabled people are Canadians and should have the right to protection from discrimination as a matter of Canadian heritage or, if you like, of constitutional right.

The Joint Chairman (Senator Hays): Dr. Peter Lang.

Mr. Lang: Concerning the list of those protected from discrimination under Section 15(1), this Committee has had the importance of this issue stressed by Mr. Gordon Fairweather, the Chief Commissioner of the Canadian Human Rights Commission.

The first specific issue that Mr. Fairweather deals with concerning human rights if the disabled. I quote from you minutes of November 14. Mr. Fairweather states:

Now to get specific about Section 15, the non-discrimination rights section and the one that has most implications for us in the work you have given us, the list of grounds ‘ presented in that section is incomplete. in particular no promise of equality under the law is made to the disabled.

Mr. Fairweather goes on to state:

Costs are not relevant to the guaranteeing of the right to equal protection of the law.

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Mr. Chairman, all parties have supported in principle the inclusion of the disabled for protection in the constitution. ln its first report to Parliament. the Special Committee on the Disabled and the Handicapped stated—and I would like to pass this report out so that you could follow it on page 1, paragraph 3:

Should it be the will of Parliament to entrench Human Rights in a patriated Constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicaps.

There is public support, shown by Mr. Fairweather in his report of a survey of 2,000 Canadians as presented to the Special Committee on the Disabled and the Handicapped and found in their minutes at page 205. which minutes I would like to table later on.

Mr. Chairman, we know that discrimination against the disabled exists. The disabled have told us across the country. The Chief Commissioner of the Canadian Human Rights Commission has told us: the media tells us: Canada has already officially acknowledged discrimination against the disabled and signed at the United Nations on December 9th, 1979, the Declaration of the Rights of Disabled Persons.

The disabled constitute approximately 10 percent of the population. It is in the Canadian spirit to have a constitution that clearly covers 100 percent of the population.

Mr. Chairman, I would like to direct my first question to Mr. Derksen.

The argument of cost has been used against the inclusion of the disabled in Section 15(1). Mr. Derksen, I wonder if you any comments on this?

Mr Derksen: This seems to be based on the idea that simply to place disability or handicap in Section 15(1) without any limiting clauses might result in the courts imposing disruptive change on our society: for example, that all buildings without elevators be equipped with elevators.

Now, we see that religion, sex and age are also included in that section without any limiting clauses. We see that Section 1 or Section 15(3) as proposed by the Human Rights Commission, would allow the courts to interpret the reasonableness or the justifiable necessity of limiting that protection from dis crimination for age, sex and religion.

Sections 1 and 15(3) would make possible an interpretation, in regard to protection from discrimination on the basis of age, by the courts that would uphold 18 as the minimum age for, say, the purchase of liquor, firearms. voting in federal elections. There seems to be a misunderstanding that there is no comparable limiting clauses in existing statutes. and no comparable precedents in existing case law to limit reasonably. where justifiably necessary, that right to protection from discrimination.

In our appendix, we point out the fact that seven provincial human rights commissions and the Acts that they administer

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include limiting kinds of clauses which take into account undue hardship for the vendor of a service; which take into account the need for the employer to require bona fide occupational requirements; which take into account and allow a mechanism whereby the commission or tribunal can determine reasonable qualification to the right.

Now, all of these things are in place. The courts will not have to. We will not desire that in a vacuum in interpreting the constitutional protection for disabled people from discrimination.

We believe that those mediating mechanisms which are already in place will enable an orderly process of change to a point where disabled people would not be discriminated against in the provision of goods, services and in their endeavour to achieve employment and so on.

We believe, in fact, and this has been shown by the strong economies of Northern Europe, that enabling disabled people to participate in society would be an extremely cost effective course of action for this country to take.

We know that in Sweden technical aids are made available to disabled people who require them for employment and for independent living within the community. The same is true in West Germany.

We believe the cost argument which underlies much of the resistance or objections to the inclusion of disability in the constitution is not a real one.

in our brief we call on those who object to the inclusion of handicapped in the constitution to come up with demonstrably clear and justifiable sound objections, not merely the kind of vague implications or references to drafting and definitional problems. The definitions exist; they are very similar from one jurisdiction to another, which tells us that they have been tested and that they work.

We believe that Chief Commissioner, Gordon Fairweather, has a good deal of experience in administering protection from discrimination for disabled people. We think that his opinion should carry a lot of weight here.

Thank you.

Mr. Lang: Mr. Chairman, my second question is also for Mr. Derksen.

-Are there any other governments which have provided protection from discrimination for the disabled, and as a second caveat to that. can you give us any information on the economic factors involved with these governments, and in particular whether they have presented any impediment?

Mr. Derksen: Well, I can say that Nova Scotia, New Brunswick, Prince Edward Island, Quebec, Manitoba, Saskatchewan and Alberta, all give comprehensive protection from discrimination to the disabled through the ordinary legislation of human rights acts. Some of these have been in place since 1974; others are more recent.

There is no indication that these provinces are at the brink of bankruptcy because of that protection.

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Ms. Peters: I wonder if I can add to that. I am from Saskatchewan where we have had comprehensive protection in our Human Rights Code for disabled people for the past year.

As well as being a member of COPE, I am also an employee of the Human Rights Commission and I get to see different perspectives, I suppose.

In Saskatchewan for the past year we have had approximately 40 complaints based upon discrimination because of disability, 20 of which have been in relation to accommodation complaints. I might add that we have in our code a clause which exempts people or businesses or employers if making their place accessible would cause undue hardship and inconvenience.

I might say that, out of all those 20 complaints, we have not activated that mechanism, because once people have been informed that they are violating the law and how they can correct it, they are usually quite willing to do so.

If I may, I would like to refer to an example which occurred in Saskatchewan. We had five complaints laid against the University of Saskatchewan which contained a number of old buildings that disabled students were not able to have access to.

Technically. in the code, I suppose we could have—well. they were violating the code, and they could have been forced to make the building accessible immediately. This might have caused an economic hardship.

However. the agreement that was agreed upon and settled on between both the respondent and the complainant, established a timeframe in which over the next couple of years allotments from the various budgets would be ascribed to making the building accessible.

What I am trying to illustrate here is that disabled people are willing to be reasonable and that there are methods of overcoming access problems, and certainly Saskatchewan has not been brought to its knees with bankruptcy or anything like that.

We have to realize that this has to be done reasonably and with commonsense.

The Joint Chairman (Senator Hays): Thank you very much. Ms. Peters. Dr. Lang, thank you.

There are two people here who would like to be heard. I wonder if we could confine it to a short question? We have Mr. Halliday and Mr. Smith.

Mr. Smith: Thank you, Mr. Chairman,

I would like, first of all, to congratulate the committee on being here and presenting us with this brief. As a member of the Special Committee on the disabled and the Handicapped. I am aware of the real concerns that our witnesses have today in regard to discrimination.

I think I would be very remiss, as a member of the Official Opposition, if I did not support the comments which came from my colleague, the Honourable Walter Dinsdale, when he brought to the attention of people the serious ommission

[Page 41]

certainly of his name from the list of those who have been prominent in putting forward the needs of the handicapped over the years. Indeed, the formation of the antecedent of this committee a year ago was due entirely to the efforts of Mr. Dinsdale, his approach to the United Nations on behalf of Canada has obviously been ignored, and I am surprised that our witnesses forgot that closure did prevent many members from the House of Commons from all parties, indeed, from being involved in this very debate which you have some concern about. To me, that is a form of discrimination, and I am surprised that it is coming before this committee from our witnesses today.

I think, Mr. Chairman, all Canadians are concerned about the problems of discrimination and how we should deal with it. We want to ensure that Canadians, indeed, the handicapped, will not be discriminated against.

The difficulty, however, is to know whether that can best be achieved by entrenehment or otherwise.

So I would like to ask the committee whether in their study of this whole subject they have given consideration to the possibility of amending the Canadian Bill of Rights, and giving it primacy, as one alternative and have they given consideration to the fact that some countries, such as the United States of America and Russia, do have entrenched Bills of Rights: Canada does not. What are the benefits, vis-a-vis the two which are obvious to us all?

Thirdly, they have raised the matter of minimum wages on page 3 of their report. Have they studied the recently released document by the Economic Council of Canada which throws a lot of question and doubt as to the effectiveness, indeed, of whether or not minimum wages do what they are supposed to do?

Finally, have they given consideration to the difficulties which we have seen both in Canada and more particularly in the United States where they have an entrenched bill of rights, to the difficulty that some judges may be at the extreme end of the spectrum one way or the other and cause great difficulty in the interpretation of what people really want?

Mr. Derksen: I would like to start by saying that having worked very closely with the Special Committee on the Handicapped and the Disabled, and having known Mr. Dinsdale for many years and his efforts on behalf of our constituency, we wholeheartedly are aware of the Conservative Party’s efforts on our behalf, and Mr. Dinsdale’s in particular.

it was a listing of those members who had spoken specifically for the constitutional amendment that is the substance of our brief today that was given. That was the only the reason why there was no mention of members from the Conservative Party.

In fact, I would like to point out that Mr. Dinsdale last week on Standing Order 43 called for the long-awaited amendment to the Canadian Human Rights Act and we are aware of that intervention and appreciative of it.

We are aware that there are many constitutions in the world today which are not honoured. We are also aware that there

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are constitutions which do find a good deal of honour in the courts of the countries where they are in place.

We have surveyed just this past week, our National Council which is representative of each of nine provinces and we find that our organizations are in favour of an entrenched Charter of Rights and Freedoms, and that we do want inclusion in it. We can only hope. together with all around this table. that if and when this Charter is entrenched. it will be honoured by the courts. Some of us as individuals, although we have not discussed it as the larger organization that we are, are concerned about extreme judgments made by individual judges. Again. it is our hope that the judges will receive and accept clear direction from Parliament in the form of this constitution and the Charter that is intended to be entrenched in it, so that they will give good and reasonable consideration to the interpretation of the Charter.

We are not familiar with the minimum wage document which you referred to. However. I think it is safe to say to that in the area of minimum wage, as long as there is minimum wage legislation in Canada designed to protect Canadian workers from lower exploitation of wages. disabled Canadians should be protected by that legislation. At such a time that it may be the wisdom of our country to eliminate minimum wages, then we can reconsider the entire matter and perhaps need not be included at that point.

The Joint Chairman (Senator Hays): Thank you Mr. Derksen. ‘

Mr. Smith?

Mr. Smith: Mr. Chairman, I appreciate the pressures of time and I think I will forego questions, but there are a couple of brief comments that I would like to make.

The members of the Committee will be aware that I am the Chairman of the Special Committee for the Disabled and the Handicapped; and one point I would like to make is that we have had an opportunity of hearing over 600 witnesses right across Canada in t8 different cities and it is quite clear to us that COPO which is represented here today by four very articulate people. is in fact the voice of disabled people in this country. They are very legitimate spokespersons for the disabled community and their headquarters is in Winnipeg. They are well organized and have been most helpful to the work of the Committee.

I thought it might be useful to give just a brief background as to the position of the Committee on the constitution. The first report was really primarily released prior to our final report which will be coming out at the end of the year in order to make our position known on it. This is found in the third paragraph of the first page. It is one sentence. and there was considerable discussion about it. but that presents the unanimous position of the all-party committee. I believe it has already been read by Dr. Lang but it is only one sentence;

Should it be the will of Parliament to entrench human rights in a patriated constitution, your Committee believes that full and equal protection should be provided for persons with physical or mental handicaps.

[Page 43]

I think it is important to point out that it would be unreasonable to conclude that if specific reference is not included that somehow the constitution will not cover disabled Canadians.

It is quite clear to me that it will cover everyone, but I think that our Committee was of the viewpoint that we wanted the clearest possible indication that disabled Canadians are in fact covered and all their rights are protected.

Now, I appreciate that there is some concern over the question of definition and what is reasonable. There has of course been legislative precedent in Canada in the Human Rights Act I am not aware of any difficulties that have been encountered in the interpretation the courts have given to the reference in the Human Rights Act concerning disabled Canadians.

I know that there is also the concern about, well. once specific reference is given to one minority group. does this open the Floodgates to all minority groups? I think it could be argued that the rationale that prompted the reference to disabled Canadians in the Human Rights Act would also exist in the case of the constitution.

Those are really the points that I wish to make. Mr. Chairman. I appreciate your definition problems but this is the position of the Committee and I wanted to reinforce the conclusions of the Committee.

The Joint Chairman (Senator Hays): Thank you very much Mr. Smith. And as Chairman of the Committee you might go back and tell your members that we will include the first report in the Proceedings.

Mr. Smith: Thank you.

The Joint Chairman (Senator Hays): Yes, Mr. Derksen?

Mr. Derksen: I would just like to introduce Monique Couillard, the delegate to COPO from Quebec who arrived late on the plane and had a wheelchair breakdown at the airport. She has not been able to participate in the discussion and I wanted to make certain that she was introduced as the other three of us were.

The Joint Chairman (Senator Hays): Yes. Thank you very much, and we are very, very pleased to hear from you.

This concludes the evidence and we should like very much to thank the Coalition of Provincial Organizations for the Handicapped and Mr. Peters, Mr. Kanary and Mr. Derksen. We appreciate your being here and Mrs. Couillard as well. Thank you very much.

Mr. Kanary: Thank you. Mr. Chairman.

[Translation]

The Joint Chairman (Mr. Joyal): Of course, I would like to join-our joint chairman in thanking our witnesses from the Coalition of Provincial Organizations for the Handicapped Although I had named you at the beginning of the hearing, Mrs. Couillard I have noted your accent, so I am very happy

[Page 44]

to be able to welcome you and to tell you that we are very receptive to the representations we have heard from your fellow members of the COPOH.

Thank you very much

 3. December 12, 1980

The Joint Chairman (Senator Hays): May I call the meeting to order.

We are honoured this morning to have with us the Canadian National Institute for the Blind, represented by Mr. Robert Mercer, Doctor Dayton Foreman, and Mr. David Lepofsky.

As you know, the procedure is that you would make an opening statement, then members should like to question you.

You may proceed.

Dr. Dayton Foreman (Vice-President, National Council. Canadian National Institute for the Blind): Mr. Chairman and members of the Senate, House of Commons Committee, as Vice-President of the Canadian National Institute for the Blind’s National Council, its volunteer Board of Directors, I am privileged to be, once again, a part of a group coming to assist in deliberations of this government and Parliament and also to field your questions.

Our group today consists of the fifth Managing Director of the Institute, Mr, Robert Mercer, who was appointed by National Council on September 1, 1980. He is the chief executive officer of this National Institute and will outline some concerns that he has.

Our third speaker is a fellow-volunteer, Mr. Lepofsky, who will speak on some points in our brief which have been submitted.

In advance, I would like to thank you for your time and hope we can answer some of the questions you will be asking.

The Joint Chairman (Senator Hays): Mr. Mercer.

Mr. Robert Mercer (Fifth Managing Director, Canadian National Institute for the Blind): Mr. Chairman, members of the Committee, the Canadian National Institute for the Blind was incorporated federally in 1918 with the dual purpose of providing services in this country to people who were blind as well as to prevent blindness in Canada.

We are a service agency, and as such we would like to make the point this morning that we do not profess to represent the views in Canada of all people who are blind, particularly on a major issue which will be addressed by Mr. Lepofsky a little later.

However, we would like to indicate that, as a service agency, working with blind people in this country, we are the largest and have a long history of involvement with blind people and generally with the community.

We have taken a great deal of time on this matter of human rights to listen carefully to what blind people have been saying and to what other handicapped people have said as well, and in putting forward our position this morning, we say, with some assurance. that what we have to say represents in fact the view of many people who are handicapped in this country, and we trust that this Committee will take most seriously the concerns that handicapped people have in this Canada in your later deliberations.

[Page 5]

I would like to call on David Lepofsky, who is a member of the Ontario Division Board of Management of the Canadian National Institute for the Blind to present the position of CNIB on the subject of human rights.

The Joint Chairman (Senator Hays): Mr. Lepofsky.

Mr. David Lepofsky (Member, Ontario Division Board of Management, Canadian National Institute for the Blind): -Mr. Chairman, i would like to begin with my thanking you both as a volunteer member of CNIB Ontario Board and as a blind individual for this opportunity to speak to you on what is a crucial issue in our view.

I would indicate at the outset two things, the first of which is I believe all the members of the committee have a letter from the Committee addressed to me from the Ontario Federation of the Physically Handicapped, a federation of some 37 organizations which deal with various kinds of disabilities, a letter endorsing the position articulated in our written brief. I would ask in pursuance of what Mr. Mercer has just said, that this is indicative of the kind of support for all of you which exists amongst all kinds of disabled persons and not merely persons with a visual handicap.

I would ask at this time, Mr. Chairman, that in the spirit of the equality which we are promoting here, the clerk to pass around to the various members—if they prefer not to read our brief in print, they have the choice of reading it on a cassette or in braile; I would ask the clerk to pass them around, and I apologize that there will not be enough for absolutely everyone, but we would be pleased to provide you with extras if they are needed in the future.

The Joint Chairman (Senator Hays): Thank you very much; they are being passed around.

Mr. Lepofsky: As I say, it is demonstrative of our efforts towards equality and our concern about the equality of blind and other handicapped persons.

Mr. Chairman, to begin, I would like to mention a point which may come as a surprise to some. The biggest problem very often with being handicapped—and so far as CNIB are concerned—is not blindness or the handicap. Blindness, visual handicap or other kinds of disability, are frequently conditions which one can learn to adjust to through training, with which one can learn to cope and ultimately achieve some substantial, if not total, degree of independence, self sufficiency and self worth.

The biggest problem very often resulting from’ blindness or other handicap is the well intentioned cruelty which many members of the public unintentionally or unknowingly impose upon us. The pity the patronization, discriminatory attitudes and condescension which handicapped people know to be, unfortunately, almost nonstop components of their life, is in fact the biggest problem they face.

[Page 6]

A handicapped person, in the case we are discussing today, namely that of a blind person, can learn through specific training to overcome the limitations imposed by their blindness, so that blindness no longer functions in most cases as “a handicap”; in fact it can become at times merely a marginal aspect of one’s life, compelling one to read in Braille rather than from prim or to use a guide dog or cane to get from point A to B, rather than using one’s eyes, but nonetheless accomplishing substantially the same things as a sighted person would.

Once one has achieved this degree of independence, however, the problem that is confronted by the majority of handicapped persons is the fact that the public is not often ready to accept us as equals, not by reason of malevolence, but because of uniformed or misinformed attitudes, underestimating our capabilities by fear of the handicapped person—you might call it the “freak syndrome”, not perceiving a handicapped person as just a normal human being. This is manifested in several ways, many of which are frightening and harmful.

Job discrimination against the disabled is something which the public are only now becoming conscious of; the fact that once you have learned to do a job, the fact that you are ready to go out into the market and be competitive, you will find the only barrier you have is not your blindness or other handicap, but the employer who cannot believe you can function.

Housing and other facilities a landlord may not be permitted to rent because a blind person might be considered a health hazard and people do not want to look at someone who has cerebral palsy because it might be somehow unpalatable to look at in the opinion of some.

Educational systems are accessible primarily to nondisabled persons, but only to a limited degree to disabled persons, and, of course, as we all know, most buildings are not accessible.

These are functions of an attitude that the world simply does not contain handicapped people or that those handicapped people are not going to be out there trying to get job, trying to get into housing or buildings.

Our concern is generally with this attitude, and CNIB as well as other organizations have taken many steps, both with public education and also lobbying, to change this. Where this kind of problem with attitudes becomes perhaps most frightening and most requiring of action, is something which is addressed in the Charter of Rights which is before you.

Handicapped people in the struggle for equality and equality of opportunity find that not only do people discriminate in the access to jobs, buildings, facilities, services and housing, but that, in fact, legislators, persons passing laws have also experienced the same negative attitudes towards the handicapped and have passed laws which are in fact discriminatory.

Accordingly, the major thrust of our presentation is that it is necessary that they should be included in Section 15 of the Charter of Rights, the so called equality or nondiscrimination clause, and be referred to as a protected class, mentally or physically handicapped persons.

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We are not looking at this as a means of getting jobs or housing, because that is something which is done at the federal or provincial Human Rights Code level, and we are actually lobbying for that.

Here, we are concerned with not just human conduct which is discriminatory, but legislation which discriminates,

Why should we be included in Section 157 Why handicapped people entitled to equality before the law and to the equal protection of the law?

To begin with, I am sure you have all come to the conclusion yourselves and you have heard from other groups, as the clause is presently drafted it is unarguable, unquestionable that handicapped persons are not entitled to equality before the law.

By this exclusion, it perpetuates in our constitution and attitude which, as I have mentioned, is prevelant in society, some notion of handicapped people as second class citizens, people who need to be taken care of, not given independence, protected, not given the opportunity of equality.

Inclusion in Section 15 for the handicapped would be consistent with what is the stated intention of the government with respect to the Charter of Rights. I refer to a statement made by the Minister of External Affairs, Mr. Mark MacCvuigan, in speaking at a public forum on the constitution some weeks ago in Toronto, when I asked him about the handicapped issue. I-Ie had said that the Charter of Rights was central to the government’s package of reforms and that equality for all minorities is central to the Charter of Rights.

If that is the intention, then that intention is thwarted by the present proposed Section 15 because equality for all minorities is not provided. Equality for some is the rubric or the essence of Section 15 as it stands, and it is a respectful submission of the Canadian National Institute for the Blind that, if the intention of the government is to, in fact, give equality to all minorities and is, given the fact that there are some hundreds of thousands or millions of handicapped persons in Canada all told, there is a minority that requires protection. That is not disputed. So the government’s intention must only be manifested, it is our view, if we are included.

Moreover, if the purpose of the equality clause is truly to grant equality, one must look at its wording. It provides equality for certain minorities: in other words, it involves equality for some; and equality for some, I submit really means equality for none. It means that there are two levels in society, one level of people who are entitled to equality and one level who are not. And when you have two distinct classes such as that the term “equality” has been stripped of its meaning and rendered more of an illusion.

Accordingly, if equality is the goal, then it must be equality for all and “all” must include, we submit, handicapped. Now, as I said previously, Mr. MacGuigan in his statement, in answer to certain questions I put to him about the handicapped issue, acknowledged that the handicapped are not

[Page 8]

included and raised the question whether handicapped people need protection in a bill of rights, whether they need egalitarian liberties. His statement was that what the handicapped need are jobs and access to buildings, and these are economic not political or egalitarian liberties, and are not the kinds of things that are required in a constitution.

Now, in a world that was not our own, where economic liberties were generally being entrenched, I would be prepared to address issues such as jobs and architectural access in the constitution; but we are not going to address that today because we recognize the constraints under which Canada and the Parliament are operating. However, I would like to address the statement that Mr. MacGuigan made, speaking at that time on behalf of the government on the constitution. He said that what handicapped people need is not constitutional protection for equality, and it is our submission that Mr. MacGuigan’s view is inaccurate. In fact, when I pointed out certain things that I am about to point out to you, he explained that he had never heard of them before and would probably need to rethink the whole issue.

Legislation, as I said, in many instances discriminates against the disabled. You have heard this before but I believe that we will be the first handicapped group that will in fact itemize examples. Many statutes across Canada, both federally and provincially, which provide that everyone is entitled to a minimum wage when they are in the employment situation provide exemptions for handicapped persons. That is discrimination under or in law with respect to a legal right to a certain minimum wage.

Certain statutes explain when that right is to be administered and when not; certain do not. They merely say that the government has or a Minister has the power to give a licence to allow an employer to pay less than minimum wage, without giving reasons. This is not equality, this is discrimination, in our view.

Many statutes across Canada dealing with eligibility to sit on juries exclude bling persons from the right to serve on juries. Now, there are times when vision may be needed to serve as a juror. It is not our view that every trial should always be open for a blind person to sit on a jury; however, there are, and as a law student and soon to be a lawyer, I can speak with some limited knowledge of this, there are many cases where vision is not necessary and probably the lack of vision may be of benefit to a juror. So, legislation which just blanketly excludes blind persons without reference to their ability or inability to function as a juror, is discriminatory. The marriage legislation in Ontario provides in Section 7 that a marriage licence cannot be granted to someone who is mentally defective. It does not refer to whether their mental limitation is so serious that it would impede their ability to understand or consent to a marriage agreement. It merely excludes someone who is mentally defective from the right to be married. Such, in our submission, is discriminatory.

[Page 9]

The Family Benefits Act in Ontario, a piece of welfare legislation, provides in one section that certain handicapped persons who are in institutions and entitled to certain welfare payments may, by executive order, have those payments paid to a civil servant, a director of the institution or whatever—I do not have the details here, unfortunately—rather than to the handicapped persons themselves. It does not ever require that a handicapped person’s right to receive welfare can be impeded only if that person is incapable of managing their own affairs. It merely says any handicapped person, so that if it is a person who is perfectly capable of handling that money capably, nonetheless their right can be taken away by executive action, perfectly legally under a statute of the province of Ontario. Such is legislation which discriminates.

The Education Act in Ontario, Mr. Chairman, provides that a handicapped person, whether physically or mentally handicapped, can be excluded from the right to go to their local elementary school if they are “incapable of profiting by instruction.” And then a separate school system is established to deal with those situations. Now education is a big and serious issue and I do not intend to address it in its totality here but I think it is fair to say that a provision that says that only where handicapped people cannot profit from instruction, only those people are excluded from the right to go to their local schools. If it is a nonhandicapped person who for some other reason is incapable of profiting from instruction, the statue does not exclude them from the right to go to their local shools. Such is unequalltreatment; such is discriminatory, at least prima facie, in our submission.

Other legislation, and I will only deal with other legislation briefly, British Columbia schools legislation, Section 107 (5) provides, Mr. Chairman, in certain circumstances that an employee of a board of education who is totally and permanently disabled—and I could not find a definition in the act of that term—cannot be hired by the board until they lose their disability. Now, certain disabled persons cannot function in a teaching environment but others can. So such a blanket exemption, if applied against any person with any disability, would be, in fact, discriminatory; and I bring to your attention that blind persons are functioning both in Canada and the United States in the teaching profession.

I am not sure if that act would include blind people within their definition of total and permanent disability, but there is the risk, and that is discriminatory legislation with which we are concerned.

The Immigration Act passed by the government some couple of years ago in Section 19(1) provides a higher burden on a handicapped person who proposes to immigrate to Canada. If that handicapped person can meet all the requirements required of a non-handicapped person, able to support themselves, finding a job, et cetera, et cetera, they still must prove to a medical officer that they will not be an excessive demand on health and social services. There is not requirement that other persons wanting to immigrate have to prove that they will not provide such a demand on health and social services. Such separate treatment not applied to all immigrants is discriminatory in our view.

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I would submit that there are other laws that do discriminate but I think that these are sufficiently ilustrative to respond to the suggestion that we need no constitutional protection, the legislatures can take care of it themselves. This is evidence of how the legislatures have taken care of handicapped rights to equality and moreover, Mr. Chairman, I think that it rebutts the suggestion made by Mr. MacGuigan a couple of weeks ago in response to my question, that handicapped people simply need rights to jobs; they can be provided by statues, they do not need constitutional rights.

Moving on, Mr. Chairman, I would say that there are other reasons why we need to be included in the clause providing for equality. We are a substantial minority. We are not talking about a very small number of people. We have 30,000 clients registered at CNIB and Dr. Foremen can provide you with information of how many other visually handicapped people, as well as other handicapped people, may well be out in the community. Some have suggested that there are one in ten persons in Canada handicapped in some way and therefore would benefit from the kind of constitutional protection we are talking about.

There are a couple of arguments that have been raised primarily by spokesmen for the government—in one instance, I think it is the Minister of Justice, Mr. Chrétien—against handicapped inclusion. One argument that he made is that we should not include it now because it is hard to define the term handicapped. We should wait until we can come up with a definition and put it in through an amending formula. Well, with respect to the Minister of Justice, I do not believe that position is tenable.

Firstly, if this Committee requires information on how to define handicapped, having looked over most Canadian statutes that contain the word and have various definitions over the past few days, I have found that some statutes do not even bother defining it but those that do have been able to effectively, and having done some research on this particular issue myself, I am more than happy to supply you with information to show that definition of handicapped would be no problem.

Secondly, leaving it to an amending formula is not a realistic proposition, because the process of amendment which requires a lot of lobbying, a lot of time, a lot of money, would not be in our view, probably manageable by handicapped persons being for the most part served by not altogether wealthy, non-profit organizations who live off of charity donations in many cases, and handicapped people themselves often living at or below the poverty line.

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So the amendment process will simply not be open to us as a practical matter, I submit. But more importantly, definitional arguments I do not think are persuasive in saying that handicapped persons not be included. Many terms are included, both in this Charter of Rights as proposed and in the British North America Act, 1867, which are much more vague than is the word handicapped, or mental or physical handicap. We note that in Section 15 they refer to discrimination on the grounds of religion. Mr. Chairman, I would invite anyone to define what religion means in a comprehensive manner. I think that that term, while we know that certain religions, Judaism, Christianity, Buddhism are religions, there will be many borderline cases where we do not know if those groups are religions or not. But that has not precluded the drafters of this Charter form including religion.

You will note in the British North America Act that under Section 91, criminal law is given to the federal government. We have had 100 years of litigation over what criminal law means in the constitution but that never stopped the framers of the BNA Act from including the words “criminal law” within that constitutional document.

And finally, in Section I, of the proposed Charter, the words “reasonable limits” are used, which I would submit are incredibly harder to define, if ot impossible to define, than are the words “mental or physical handicap”. Accordingly, I do not think one can simply avoid the issue or duck the issue because of definitional problems.

The final reason that I would like to articulate for including handicapped in Section 15 concerns an argument that some have raised against it: namely, that the costs occasioned by including the handicapped would be excessive. I have several responses to that argument.

Number one, I would ask what those costs would be. I am not altogether clear and I would submit that there probably are not that many. Intuitively nothing really comes to mind as being excessively costly.

Secondly, I would submit that unless this Committee is going to go through the process of looking at every liberty enumerated in the Charter of Rights and say how much will this one cost, should we include it, is it too expensive?

Unless we are to do that with every single liberty then there is a certain inequality to simply looking at one group, namely the handicapped, and say that they will be excluded on the basis of a cost argument. And so, if that argument is presented before this Committee, I would ask that your bear that in mind. And finally, if that argument is presented before this Committee, that is that including handicapped would be too costly, I would ask you to bear the following argument in mind, or the following point in mind.

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To say that the cost is too excessive is to assume that handicap inclusion is the absolute lowest priority of every government in Canada, that we have spent every last dollar of revenue we have taxed and collected and that there is no money left. If you were to look at the priorities of the various governments, provincial and federal, of spending, you might find that there are others that are lower priority than handicapped equality and you might find that it might be worth including the handicapped in the constitution and perhaps let some more inconsequential programs go by the board.

I do not think it is fair to simply say it costs too much, therefore we cannot do it.

Moving very quickly through the other points of ours, because the other points we have made are ones which other groups have made as well, we recommend not only that handicapped be included in the Charter, Section 15, but we would prefer it if the Charter read something like equality before the law without unreasonable discrimination or without unreasonable distinction. Unreasonable discrimination meaning without restricting the generality of the foregoing, and then you can put a list of protected classes and include mental or physical handicap.

The reason we suggest this is because if an equality clause is truly to give us equality, it must give us equality with all others. And that is the way to do it.

It has been suggested before this Committee that perhaps it would be best to simply say equality before the law without discrimination, period, no reference to a list of protected classes. Now, that would be preferable to what is proposed in the present bill, but in our view, it is not desirable for the following reasons.

Firstly, it would mean the some thousands and thousands of dollars would be required going to court, appealing up to the Supreme Court of Canada, in order to get a precedent that decides whether handicapped is a class protected by the clause. To avoid that kind of cost, delay and uncertainty, it could be easily included now without any such costs.

And secondly, Mr. Chairman, the fact of the matter is, if we have to go to court and argue it, there is no guarantee that we will be included by the courts. The courts take a very restrictive view of civil liberties in general, and handicapped civil liberties is a new area in Canadian law and therefore the risk is that we may never get in, even after an appeal process. So the only way of guaranteeing our rights is by including us.

Briefly, Mr. Chairman, we recommend, as is mentioned in our brief, that the words “euality before the law” and “equal protection of the law” are far too weak a means of protecting egalitarian liberties. You have heard this from other groups and we endorse the views that have been presented namely that the courts under the present bill have interpreted those words to not provide egalitarian liberties, and they have done it in an unequivocal way. And these words, even though there is one word that is different, these words are far too close, far too close to the existing Bill of Rights to ensure anyone that the courts will use this as a strong lever to nullify discriminatory laws. It is our concern that, once again the same amendment argument goes, if we get bad precedent, we have to go through the amending process, and we have seen in the State with the ERA battle how many years and at what cost that fight is and that there is no certainty of success.

[Page 13]

More importantly, it is our view that the courts have a tradition of taking a very restrictive view of civil liberties. Now, that is not by way of criticism or by way of anything less than respect for the members of the judiciary, but it is something which is, nonetheless, true, I think that it will be necessary and it is our submission that it will be necessary for strong direction to be given to the courts through very specific wording directing them to invalidate discriminatory legislation.

Moving to the end of my presentation, Mr. Chairman, it is our submission, as you will see in our brief, that Section I should not govern either Section 14 or Section 15. It is our view that there should be no circumstances where the right to an interpreter, which a deaf, blind or just a deaf person may require in court, should ever be taken away. Why is it either in war or emergency that a deaf-blind person on trial should be denied an interpreter to know what the case is against them. It is too basic and a denial of natural justice.

Moreover when should unwarranted discrimination be permitted? At wartime? At peacetime? In the case of an emergency? It is hard to imagine a situation where it is justifiable, and therefore we have recommended, as have other groups, that Section 14 and Section 15 be absolute rights, rights not subject to Section 1.

Alternatively, if that point of view is not acceptable to the Committee, it is our submission that the wording in Section I is far, far too broad. You have heard all the arguments before, we can only reiterate them, that Section 1—labelled by some as the Mack truck provision—will in fact make the rest of the Charter of Rights a virtually worthless and impotent means of protecting civil liberties,

In particular, the generally accepted view of the public with respect to handicapped persons is that they are often not capable of taking care of themselves, not capable of maintaining a job, not capable of self-sufficiency, and therefore the kinds of laws that I have discussed previously that are discriminatory would be under Section I generally accepted in a free and democratic society, passed by these kinds of Parliaments. And accordingly, if Section 1 remains, and if Section 15 is still subject to it, it is our view that Section 1 must be very narrowly constrained to protect minority rights and in particular, handicapped rights.

Finally it is our submission that Section 29, (2) which provides that the equality clause will go into effect later than all other parts of the bill should be repealled, simply because there is no good reason in our view why egalitarian liberties should be delayed. If anything, they should be accelerated.

[Page 14]

In conclusion, I would like to make the following points. Our concern is that there is a danger of misleading people if the Charter does not include the handicapped. There is the danger that people will believe that in Canada under such a provision, egalitarian liberties are truly safeguarded, there is equality for all, Without handicapped inclusion such is not the case. And it is not only unfair to handicapped persons to deny them equality, but it is a risky venture for the public to be misled into believing that all minorities are protected when they are in fact not.

Our concern, as I said at the outset, is dealing with public attitudes. Public attitudes are something which we must battle at various levels. At the constitutional level we are battling public attitudes as they are manifested through legislation and this is a battle which is both serious and crucial.

Finally I would close by saying that there is an oft stated adage thatjustice is blind; in fact it is a cliché.

Our concern—and the underlying concern of this presentation—is that while justice may have had the opportunity to experience blindness, we are asking for blind persons, as well as for other handicapped persons, to be given at last an opportunity to experience justice.

The Joint Chairman (Senator Hays) Thank you very much, Mr. Lepofsky.

Inasmuch as Mr. Lepofsky and his group have given us a thorough understanding of their brief, we have a few minutes left.

We have another group scheduled to be here at l0.l5 this morning and the House sits at 11 o’clock, I am wondering if I could have some agreement that we have three questions on it and that we could probably terminate at 10:20 or 10:25 and have our time as five minutes rather than the 10-minute round?

Mr. Epp.

Mr. Epp: Mr. Chairman, I was going to make the recommendation and Mr. Lepofsky has been excellent in the presentation and on this topic; and there are just two points: one, he kindly offered us to make information available re definition of the handicapped. I hope I have stated that correctly, But I would ask the Committee to request of Mr. Lepofsky that he make that information available to us, though it does not necessarily have to be appended to the minutes of this hearing, but that the information be circulated.

Secondly, I would recommend, Mr. Chairman, instead of the 10 minute-round for the witnesses this morning, that you reduce it to five minutes, and if there are any questions after that first round we will leave that with the Chair.

The Joint Chairman (Senator Hays): Thank you very much. Is that agreed?

Some hon. Members: Agreed.

[Page 15]

The Joint Chairman (Senator Hays): I see that is agreed.

Senator Donahoe.

Senator Donahoe: Thank you, Mr. Chairman.

Gentlemen, I am very happy that good fortune presented me this morning with the opportunity of sitting in on this Committee as a substiute for one of the regular members, because I am very pleased to have had the opportunity of hearing the very excellent presentation made by Mr. Lepofsky.

I was interested to hear the illustration that was given of discrimination possibly against an unsighted juror, because in my experience as an Attorney General for many years, I was once faced with the application for appointment as a Crown Prosecutor by a blind person.

He was an excellent lawyer, a good student and so on; but he was asking to be made a Crown prosecutor to conduct criminal prosecutions.

I would ask you to believe that it was a matter of real difficulty for me to determine whether or not that handicap, in fact, was of a nature which detracted from his ability to do the fullest and most complete job in that particular capacity.

I want to say that I did, in fact, appoint the gentlemen and that he conducted himself with great credit for a number of years.

But I wonder if the person who suffers the handicap can appreciate the difficulty that a person in the position in which I was at that time might have had in determining whether they are in fact discriminating against that person because of the handicap or whether they are in fact merely endeavouring to see that their obligations and responsibilities are discharged in the best possible manner.

However, I do not wish to say or to ask too much, because I think your presentation was, indeed, excellent and from the point of view of the organziation for which you are speaking and the people whom it represents, it has been exceedingly well put here this morning.

I would like to ask this simple question. Do you believe that the position of the handicapped will be substantially improved or enhanced if this procedure is followed? The procedure that is suggested is to entrench certain rights.

You have indicated that you find the suggestions inadequate, insufficient and in need of substantial amendment, and that those amendments should be specifically directed towards the class of person for whom you are speaking here this morning.

Do you feel that the position of the handicapped is going to be very much improved and very much enhanced if this procedure is followed with or without your suggested amendments?

Mr. Lepofsky: Mr. Chairman, to answer both your points, understanding the fact that an employer or service must go through a very difficult analysis and thought process to decide what one is capable of, is something which is only too well understood by any handicapped person, because before someone like myself decided to go into law school I had to make that same analysis.

[Page 16]

So it is something which not only I have thought about, but i would think about it before any of my potential employers have thought about it.

it is a very difficult process. The equality clause, if it included the disabled, would give us a right, in the instance where a legislature had gone through that thought process and in fact had made a wrong decision in the passage of laws which end up discriminating, would give us a right to appeal that to the court and to argue that it is an unreasonable distinction which is being drawn against handicapped persons.

My first point would be, Mr. Chairman, that this would provide a means or mechanism for handicapped persons and other interested groups, to challenge legislation which is discriminatory. If these provisions are not put in, then it would signal to the disabled that it is the prevailing view in Canada that handicapped people are not entitled to equality before the law and that the kinds of discrimination that are experienced by any handicapped person in their every day life are in fact representing a pervasive view which in fact has been articulated through the actions of the framers of the new constitution.

On the other hand, if this provision is included as we have proposed, several benefits would accrue, l would submit. The first is that next year being the International Year of the Disabled Person, it would show Canada as doing what could be the best possible move to ensure disabled persons equality, which is to pass a constitution enshrining their rights; secondly, it would be a signal to the Canadian people that as regards handicapped persons, who in the past have either been a forgotten minority or a lesser class of citizen—and I say this was not intentional or out of malevolence; but it has happened nonetheless—that a new era has dawned and that as deeply felt a concern is being presented to Canada as can be expressed through a Charter of fundamental rights as acknowledging this liberty.

As I say, some of the more odious legislation, some of which I have already enumerated, would be amenable to attack. I know that certain lobbying has succeeded in Ontario, and lobbying by certain groups have inspired the Ontario legislature, after I00 years of having similar legislation to finally change it, and it is now about to get the Royal Assent, but the process of getting the reform has taken a long time. Had we an equality clause we could have had it adjudicated upon and probably won the matter possibly much more quickly. It was only, frankly, out of luck, that in our view this amendment ever came through.

The Joint Chairman (Senator Hays): Thank you very much.

We have Mr. Althouse followed by Senator Connolly.

Mr. Althouse.

Mr. Althouse: Thank you, Mr. Joint Chairman.

Other evidence seems to suggest that the disabled and handicapped people suffer an unemployment rate of between 70 per cent and 80 per cent. I note in your remarks this morning that you mentioned employers who do not believe you can function as one of the big handicaps you are facing.

[Page 17]

Is that the greatest difficulty faced by blind people, for instance, access to opportunity to function? Will the proposed amendment encourage this access to opportunity in your opinion?

Mr. Lepofsky: I would agree that the access to jobs and other facilities is perhaps the greatest problem. As I said, it is the attitude to the public that is the greatest problem and perhaps is the worst manifestation of it, aside from the other manifestation I have mentioned, namely the legislative discrimination.

Our proposals would not require employers to hire a handicapped person who can do the job. That is something which is dealt with by the Human Rights Code. I would say that we are involved in lobbying along with many other organizations for amendments to such laws. I am personally involved in that and could give you a lot of information on the subject if necessary.

It would, however, have two beneficial effects on the employment situation. The first is that, by entrenching this in a charter of rights, as I have said before, it would be a signal to the Canadian public that handicapped people are entitled to equality. That is an educational effect which would be of profound importance and help.

Secondly, there is the possibility and I did not mention this in my list of discriminatory legislation, because a good law student is told that you should use your weakest argument at the end or drop them altogether; but the federal Human Rights Code provides protection for the handicapped in the area of employment, but does not refer to them in the area of access to services or goods. I would say that is a form of discrimination. As you know, the Canadian Human Rights Commission has recommended amendments to cover that.

I would be interested to know if we could build a case that we are getting unequal treatment under the Human Rights Code, since in certain provinces we are not included at all in the code, and in other provinces we are only given partial protection.

But that is a case as to which, while I would like to argue it personally, I am not overwhelmed by the fact that it would be successful. But the most important point is the educational effect on the public and that laws which are a barrier to education, a barrier to equal opportunity, and signals second- class citizenship for the handicapped to the public, would be attackable by us.

Mr. Althouse: In this regard, the slow movement towards access to jobs and equal access to buildings and services, I note one of the supporting groups, the Federation of the Physically Handicapped for Ontario, has mentioned in supporting documents which were passed out along with your brief, that Section 29, they make the point—in the proposal before us places a restriction on the implementation of such rights; under Section 29 it is stated that there will be a three-year waiting period, and they would not come into effect any sooner than the amending formula.

[Page 18]

What is the reaction of your group to this waiting period? Your group of handicapped individuals seem to be the only group that have been singled out for this by subsection (2).

Mr. Lepofsky: I would say it is a concern of ours. The delay, if anything, is undesirable; and we would prefer to have seen an equality provision protecting us in effect ten years ago. However, I am bound to confess it is not our major concern. Our principle concern is getting into the bill in one form or another at all.

The Joint Chairman (Senator Hays): Thank you very much.

Senator Connolly.

Senator Connolly: Thank you, Mr. Chairman.

First of all, we are all very happy indeed to have the CNIB here, because over the years this organization has done a tremendous amount, and I think perhaps the witnesses might agree that the important feature of that work is the fact that they have helped so much to promote the integration particularly of blind people into the community, into society and all phases of Canadian life. This is a great achievement on the part of the CNIB and of the people who work with them.

But may I also, on a personal basis, congratulate Mr. Lepofsky for the very lucid, very comprehensive statement that he has made. I predict that he is going to be a very good lawyer. I would hope that he might become a member of Parliament, but I would tell him immediately that he will not be the first person who is without sight who has been in the House of Commons. I do not say that as a joke. There are lots there who perhaps physically see, but perhaps mentally do not. That does not, of course, apply to the Senate. We have had people without sight in Parliament: Trevor Morgan was here in the early 1970’s on the Conservative side.

The Joint Chairman (Senator Hays): Senator Connolly, I think Doctor Foreman would like to ask you a question.

Mr. Foreman: I was just going to thank the Senator for his kind remarks about the Institute and about Mr. Lepofsky. I would also like to thank the Committee from the point of view of letting my guide dog in.

Senator Connolly: Good, good. I think I can remember a man—I believe his name was Estey or something of that nature, but whatever his name was, I think he may have be the first in Parliament, this man whose name escapes me; and for this I apologize. There is a great story of an exchange between Mackenzie King, R. B. Bennett and this man at one time over the Doukhobors—one of the great stories on the record of Parliament.

But I would like to ask Mr. Lepofsky this. You have been talking, and the other groups which have represented the handicapped have also been talking, about the importance of integrating the handicapped community into the normal stream of public life.

I think great strides have been made as education has advanced, and as public education in this respect has improved. I do not ask you this as a trick question, but I wonder whether, by segregating the handicapped you are not, to use your own words, signalling to the disabled that they are forever a segregated group?

[Page 19]

Would your position not be stronger before the law, even before these provincial laws which you have criticized here, if a nondiscriminatory clause applied equally to you, whether you are handicapped, equally to me, whether I do not happen to be physically handicapped, maybe mentally and so on; but would it not be better in the long run not to have a special category set out in a constitution which, presumably, is to last for a very long time?

Mr. Lepofsky: I can answer that question, Mr. Chairman, briefly. First, I thank you for your compliments with respect to my potential future in Parliament; but my immediate concern, perhaps a little myopic, is that I have another four bar examinations to write and I will continue to be a law student for a lot longer.

On the question of integration generally, I must say, particularly under the leadership of the new management of the CNIB with Mr. Mercer, among other things, CNIB as well as other organizations are becoming much more active in adopting integration of handicapped people into society as a goal, phasing down and phasing out segregationist programming and lobbying for equal rights legislation; this is demonstrative of our kind of work.

While there has been segregation, in fact somewhat imposed by handicapped organizations over the years, this is something which is changing, and I would say that the three gentlemen in front of you representing the CNIB are hoping and striving to see that change continue and accelerate.

As to whether it is somewhat discriminatory or special treatment to mention us expressly in the equality clause, I have two answers or brief points to make to that. First, is that, as 1 have mentioned in my general remarks, if you do not put us in expressly, and merely say equality before the law without discrimination period; then, you are leaving it to us to have to litigate and go to court and spend thousands of dollars and try our luck.

First of all, I do not think we could afford it too readily, and secondly, we are at risk that we would lose. Frankly, having read a good deal of civil liberties case law, which is a particular area of law which interests me, in Canada our courts have a restrictive or very narrow approach to the treatment of civil liberties and only enforce them, as evidenced by the treatment of the 1960 Bill of Rights, when there is no way out: and even then they do not.

So that my concern is that we may well not win such a case, no matter what the intention is of the Senate, no matter what the intention is of the House of Commons in passing this bill. The only way we could be sure to be in, speaking from a legal point of view, is to put us in. Saves us money and improves our chances.

The Joint Chairman (Senator Hays): Thank you very much, Mr. Lepofsky.

[Page 20]

At this time I would like to thank you on behalf of the Committee. Mr. Mercer, Dr. Foreman, I want you to know that your dog is most welcome in here. I was going to say something and I thought bketter of it after. I have great respect for dogs.

In your brief you have raised some problems that I am sure none of the Committee had heard before, at least I had not, and we appreciate your being here.

Thank you very much.

Mr. Lepofsky: Thank you.

The Joint Chairman (Senator Hays): Mr. Mercer, did you have something you wished to say?

Mr. Mercer: Yes, Mr. Chairman.

I know that our president, Mr. Dick Smith from Winnipeg, would like me to express thanks and appreciation from CNIB for all of you today for taking the time to listen to our point of view, so thank you very much.

The Joint Chairman (Senator Hays): Thank you.



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Yesterday, Disability Concerns About the Risk of Disability Discrimination if Critical Medical Care Must be Rationed Was Raised In the Ontario Legislature, the Media and Premier Ford’s News Conference


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/

Yesterday, Disability Concerns About the Risk of Disability Discrimination if Critical Medical Care Must be Rationed Was Raised In the Ontario Legislature, the Media and Premier Ford’s News Conference

December 4, 2020

            SUMMARY

Yesterday’s strong open letter to the Ford Government by 64 organizations and groups, spearheaded by the AODA Alliance and the ARCH Disability Law Centre, has increased public attention to our concerns about the Ford Government’s plans if a continuing surge in COVID-19 cases requires rationing or “triage” of hospital critical medical care. We have called on the Ford Government to at last release the secret report and recommendations of the Government’s Bioethics Table on this issue. This is especially important since the Ontario Human Rights Commission has publicly stated that it has human rights concerns with those recommendations.

What Happened Yesterday

Here is a summary of important developments on this issue yesterday, the International Day for Persons with Disabilities:

  1. In the Legislature during Question Period, Opposition disabilities critic NDP MPP Joel Harden pointed to this new open letter to The Government from the disability community. He asked the Government to make public the report and recommendations of the Government’s Bioethics Table (which the Government has kept secret for almost three months).

Conservative MPP Robin Martin, the Health Minister’s Parliamentary Assistant, responded, but very obviously did not answer the question. Below is the Hansard (formal transcript) of the exchange.

  1. Yesterday’s Toronto Star included an excellent report on our community’s open letter, written by reporter Brendan Kennedy, set out below.

As well, this issue was picked up by Ottawa Radio 1310’s Rob Snow program, which interviewed AODA Alliance Chair David Lepofsky. Global News also included a story on this issue in yesterday’s evening TV news program.

  1. During the Premier’s midday December 3, 2020 news conference, Global News asked Premier Ford about our open letter and about making the Government’s plans public. In an answer which we transcribed and set out below, Health Minister Christine Elliott stated that discussions are now ongoing with the Ontario Human Rights Commission about the proper critical care triage protocol to put in place that is fair to everyone. She said she is not sure how long those discussions would be going on, “but that would come forward at the appropriate time.”

Reflections on What Happened Yesterday

The Government said nothing yesterday or previously to the Legislature or the media that explains, much less justifies its keeping secret the Bioethics Table’s report. Both the Ontario Human Rights Commission and the Bioethics Table have called on The Government to make that report public.

We need the Bioethics Table’s report and recommendations to be made public now, and not at some unspecified future “appropriate time.” If such discussions are going on now that have a bearing on human rights for people with disabilities, we should not be shut out of them. We need to know what they are discussing, and we need to be part of those secret discussions.

You will see in the Toronto Star article, set out below, and to the Government’s statement in the Legislature in Question Period, also set out below, some references to the Government’s having increased the number of hospital beds. Not every hospital bed is a critical care bed, with all the services that a critical care patient needs to survive. We have seen no assurance that along with an increased number of beds, the Government has provided all the supports and services needed to ensure that they can provide effective critical medical care to all patients who will need critical care as the COVID-19 pandemic continues to surge, whether they need critical care due to COVID-19 or due to heart attacks, strokes, car accidents, or numerous other causes. Along with the hospital bed, there needs to be a sufficient number of intensive care doctors, nurses and other specialists, as well as ventilators and other equipment and supplies, and the required ventilator technicians. These critical care beds must be located in facilities that are equipped with the safety features needed to make sure that COVID-19 does not spread among patients and staff.

What You Can Do to Help

We strongly encourage one and all to write the Government. If you are concerned about the need for a non-discriminatory clinical triage protocol and the need for transparency in the process of developing it, you can write to your MPP to request the Ontario Government draft a non-discriminatory clinical triage protocol that ensures persons with disabilities have equal access to critical care resources during the pandemic. ARCH has launched a letter writing campaign. You can use this link to learn more: https://archdisabilitylaw.ca/write-to-your-mpp-about-ontarios-triage-protocol/

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

Watch the AODA Alliance’s new captioned video explaining the entire critical care triage issue, and our new captioned video describing the broader campaign over the past eight months to overcome the serious new barriers that people with disabilities have had to face during the COVID-19 pandemic.

Delays and Delays and Delays

There have now been 673 days, or over 22 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 still announced no comprehensive plan of new action to implement that report. That makes even worse the serious problems facing Ontarians with disabilities during the COVID-19 crisis, addressed in the new online video we unveiled last week.

            MORE DETAILS

Ontario Hansard December 3, 2020

Question Period

PERSONS WITH DISABILITIES

Mr. Joel Harden: Today is the International Day of Persons with Disabilities, and 60 disability organizations sent the Premier a letter today. My question is for him. In September, the government’s bioethics table for the COVID-19 response recommended which patients should be refused critical medical care if overwhelmed hospitals ration it, but to date, the government is keeping those recommendations secret. People with disabilities have a right to know what the government is going to be thinking of doing in this life and death area. We hope that triage never becomes necessary, but Ontario has to be prepared.

Will the Premier keep his promise to be transparent to people with disabilities, publicize the COVID-19 plans of critical triage protocol and do what is the proper thing: make these bioethics table recommendations public?

The Speaker (Hon. Ted Arnott): The member for Eglinton–Lawrence to reply.

Mrs. Robin Martin: Thank you to the member opposite for the question.

The health and well-being of Ontarians is our government’s top priority. In response to COVID-19, we’ve taken action to build more capacity in our health care system and effectively managed surges and future waves of COVID-19. That’s why we invested an additional $2.5 billion, or an increase of 13% from last year, to support our hospitals throughout the pandemic and build capacity, including 3,100 new beds across health facilities.

It’s critical that I remind the member opposite that at the request of health systems stakeholders, Ontario Health and the bioethics table of the provincial command structure drafted a clinical triage protocol for a major surge in the COVID pandemic for a potential worst-case scenario due to the spread of COVID-19. To be clear, this was a draft developed for engagement and consultation and should not be used. We’ve also asked our bioethics table to ensure that concerns and perspectives of Indigenous people, Black and racialized communities, persons with disabilities and others who may be disproportionately affected by critical care triage due to systemic discrimination are meaningfully considered and—

Toronto Star December 3, 2020

Originally posted at https://www.thestar.com/news/gta/2020/12/03/disability-rights-groups-decry-ford-government-secrecy-about-covid-19-triage-guidelines.html

Group decries virus triage secrecy

Letter seeks transparency on province’s priority protocols for hospitals

Brendan Kennedy Toronto Star

A coalition of disability rights groups is calling on Doug Ford’s government to make public the directions they plan to give hospitals about how to decide who should be prioritized for life-saving treatment if intensive care units become overwhelmed with COVID-19 patients.

The call comes after the government’s initial COVID-19 triage protocol – which leaked in March but was never officially released – was rescinded after it was criticized for discriminating against people with disabilities. “We write about a life-and-death issue now facing Ontarians,” reads the open letter, signed by more than 60 organizations and sent Thursday to Ford, Health Minister Christine Elliott and Raymond Cho, the minister responsible for seniors and accessibility.

The letter calls on the province to immediately release the latest recommendations from its Bioethics Table – the government-appointed group of physicians and bioethicists advising the ministry on a number of COVID-related issues – and ensure that any new triage guidelines “respect the constitutional and human rights of all patients, including patients with disabilities.”

The purpose of a triage protocol, which would be invoked only if critical care resources needed to be rationed, is to minimize overall mortality by prioritizing patients with the best chance of survival.

Among the concerns raised by disability advocates about the government’s initial protocol was its inclusion of the Clinical Frailty Scale, a nine-point grading tool they said was inherently discriminatory against people with disabilities and could lead to their exclusion from life-saving treatment.

In their letter, the organizations commend the government for rescinding the initial protocol, but the fact that nothing has taken its place also poses a danger. “If critical care triage becomes necessary, decisions over who gets refused life-saving critical care would be wrongly left to individual hospitals and doctors without safeguards against the serious danger of arbitrary and discriminatory decisions made because of disability,” the letter reads.

Roberto Lattanzio, executive director of the ARCH Disability Law Centre, said the province needs to ensure any new policy protects the rights of people with disabilities. “The pandemic doesn’t give governments a pass on ensuring that human rights and constitutional rights are respected,” he said. “We’ve been advocating for a framework free of discrimination for eight months now, and now we find ourselves in a very similar situation as we did from the outset.”

While the number of active COVID-19 cases in Ontario is nearly three times as high as during the peak of the first wave, hospitalizations and admissions to intensive care units (ICUs) are lower now than they were then. On Wednesday, the province reported that 656 people were hospitalized with COVID-19, including 183 people in ICUs. On May 1, by comparison, there were more than 1,000 patients in hospital, including 225 in ICUs.

The province significantly expanded its critical care capacity in April, increasing the number of ICU beds by nearly 1,500 to a total of 3,504. Roughly half of the province’s ICU beds were occupied as of Dec. 1, according to Critical Care Services Ontario’s daily report.

Last month, in response to a question in the legislature from the NDP, Progressive Conservative MPP Robin Martin confirmed the government had rescinded its initial protocol, which she said was only a draft, and that a “revised framework may be shared… should pandemic conditions deteriorate significantly.” But, Martin said: “We don’t anticipate getting anywhere near having to use such a protocol.”

David Lepofsky, chair of the Accessibility for Ontarians with Disabilities Act Alliance, said cases have steadily increased since Martin’s assurances, and the lack of action by the government is inexcusable. “They can’t wait until the day where they need triage and then say, ‘By the way, here are the rules.’”

The Health Ministry sent a statement saying it asked the Bioethics Table to “ensure that concerns and perspectives of those representing Indigenous people, Black and racialized communities, persons with disabilities, and others who may be disproportionately affected by critical care triage due to systemic discrimination, are meaningfully considered and reflected in a revised protocol.” A spokesperson did not respond when asked whether the government would make the revised protocol public.

Text of an Exchange During Premier Doug Ford’s December 3 2020 NEWS CONFERENCE

Note: This entire news conference is posted on Youtube at https://youtu.be/UTp3yZTSBXA

Your final question comes from Miranda Anthistle with Global News. Please go ahead.

Miranda Anthistle: Hi there, thank you for my question.

Doug Ford: Hi. How are you?

Miranda Anthistle: Ok, so the first one is, the Ontarians With Disabilities Act Alliance has written an open letter to your government about transparency on how decisions will be made when it comes to prioritizing life-saving treatments and who will get them if hospitals become overwhelmed. So will this information be released and how does the government plan on prioritizing life-saving treatments?

Doug Ford: Pass that to the Minister:

Christine Elliott: Well this is a very important issue and one that health care professionals asked us to deal with very early on in the pandemic because they were concerned about Ontario becoming overwhelmed in the same way that Italy was, for example. So a draft protocol was developed that had been sent to hospitals, but this is really only meant for internal purposes

but I know that a number…and is not being acted upon. It was met with a lot of concern by a number of disabilities groups and seniors groups and so we reached out to the table at the Health Command Table reached out to the Ontario Human Rights Commission to obtain their assistance in redrafting a protocol and I understand there is still discussions ongoing with the Ontario Human Rights Commission in order to make sure that we reach a level place where everyone is dealt with fairly in terms of dealing with the triage protocol whether it’s for people with disabilities, for seniors, racialized communities, indigenous communities making sure that it’s there and level for all people.

So those discussions are ongoing. I’m not sure exactly how long they will be continuing but that will come forward at the appropriate time.



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