Submission of ARCH Disability Law Centre to Accessibility Standards Canada

Priorities for Engagement, Accessibility Standards and Research from 2020 to 2022

September 30, 2020

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Table of Contents

• Introduction
• Executive Summary
• The ACA, the Mandate of the ASC, and Substantive Equality
• Barriers in Standards Development Processes and Section 6 Principles of the ACA
• Barriers Raised by Independent Reviews of Provincial Accessibility Legislation in Ontario and Manitoba
• Using the CRPD to Interpret and Apply the ACA
• Section 6(f): Involvement of Persons with Disabilities in the Design of Laws, Policies, Programs, Services and Structures
  • i) A Continuous and Transparent Process
  • ii) Facilitated Discussion with Meaningful Dialogue
  • iii) Resources and Supports Relevant to the Proposed Regulation
• Section 6(a): Dignity, Respect for Expertise, and Compensation
• Section 6(e): Diverse Participation and Recognition of Intersectional Experiences
• Section 6(g): Accountability and Achieving the Highest Level of Accessibility
• Conclusion

Introduction

1. ARCH provides this submission to Accessibility Standards Canada (ASC) regarding its survey entitled “Priorities for engagement, accessibility standards and research from 2020 to 2022”. ARCH’s submission focuses on Part 2 of the ASC’s consultation, relating to engagement preferences. In ARCH’s submission, substantive equality and the principles in section 6 of the Accessible Canada Act (ACA) [Endnote 1], should guide the ASC’s approach to involving persons with disabilities in a meaningful way in the creation of accessibility standards.

2. ARCH’s submission draws upon our legal knowledge of and experience with the ACA, the Canadian Human Rights Act [Endnote 2] dispute resolution processes and decisions of the Canadian Human Rights Commission and Tribunal, and the federal courts that review decisions of those tribunals. It also draws upon our ongoing work on ARCH’s Meaningful Participation in Regulation Making Project, funded by the Government of Canada’s Social Development Partnerships Program – Disability Component, regarding inclusive regulation-making under the ACA. In preparing this submission, we met with our Project Partners regarding the ASC`s role and engagement with persons with disabilities. Finally, our submission is informed by the experiences of persons with disabilities.

3. ARCH Disability Law Centre is a specialty legal clinic that practices exclusively in disability rights law. Since incorporation in 1979, ARCH has been dedicated to defending and advancing the equality rights, entitlements, fundamental freedoms and inclusion of persons with disabilities. ARCH provides a range of legal services directly to persons with disabilities in Ontario. ARCH’s work extends nationally as well. ARCH represents persons with disabilities and disability organizations in precedent setting cases at various provincial and federal tribunals, including the Human Rights Tribunal of Ontario, the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, the Canadian Transportation Agency, as well as appellate courts, including the Court of Appeal for Ontario, the Federal Court of Appeal and the Supreme Court of Canada. ARCH has an extensive law reform practice, working on a variety of initiatives to advance the rights of persons with disabilities. ARCH provides public legal education to disability communities, and conducts community development projects to support our law reform work.

Executive Summary

4. The ASC should account for barriers that persons with disabilities face in developing its priorities, strategies, and activities for engagement relevant to its research priorities and standards development.

5. Based on ARCH’s analysis of standards development processes conducted in Ontario and Manitoba, relevant academic literature, and Convention on the Rights of Persons with Disabilities (CRPD) [Endnote 3] articles and general comments, these barriers include:

6. By viewing the standards development process through the lens of substantive equality and the principles of section 6 of the ACA, the ASC may meaningfully involve persons with disabilities in standards development and address these barriers. Involvement of persons with disabilities in this context means continuous, transparent, and meaningful participation, with appropriate resources and supports. Moreover, it requires active participation, with the opportunity for discussion and dialogue, and the inclusion of persons with disabilities with diverse lived experiences and perspectives.

7. The ASC should ask participants about their accommodation needs well in advance, such that there is time to arrange accommodations as needed. The ASC should also provide any supporting documents in plain language and accessible formats. Finally, it should also evaluate its engagement strategies with reference to feedback from persons with disabilities who participated to determine if meaningful communication actually occurred, and identify areas for further improvement.

The ACA, the Mandate of the ASC, and Substantive Equality

8. Substantive equality for persons with disabilities has been described in Canadian law as “full membership in Canadian society. [Endnote 4] It is informed by the fundamental concept of dignity, which the Supreme Court of Canada has recognized as “an essential value underlying the section 15 equality guarantee”. [Endnote 5] Substantive equality is an important principle underlying the ACA and the role of the ASC within this statutory scheme.

9. The preamble to the ACA recognizes that this legislation is intended to further the “economic, social and civic participation of all persons in Canada, regardless of their disabilities”, complementing the rights of persons with disabilities articulated in both domestic and international law. [Endnote 6] For example, the preamble specifically refers to concepts of substantive equality recognized under the Canadian Human Rights Act and the Canadian Charter of Rights and Freedoms. [Endnote 7] In addition, the preamble acknowledges that the ACA plays a crucial role in implementing parts of the CRPD “to take appropriate measures respecting accessibility and to develop and monitor minimum accessibility standards. [Endnote 8]

10. Substantive equality is also reflected in key elements of the ACA, which defines disability as:

any impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment — or a functional limitation — whether permanent, temporary or episodic in nature, or evident or not, that, in interaction with a barrier, hinders a person’s full and equal participation in society. [Endnote 9]

11. This definition was intended to be broad and inclusive, consistent with the Charter, human rights legislation, and the CRPD. It was also intended to reflect the social model of disability, which acknowledges that “it is the barriers created by society that prevent people with disabilities from enjoying their human rights on an equal basis with others.” [Endnote 10]

12. Accordingly, the ACA states that a barrier “hinders the full and equal participation in society” of persons with a variety of impairments. [Endnote 11] Barriers can include “anything physical, architectural, technological or attitudinal, anything that is based on information or communications or anything that is the result of a policy or a practice. [Endnote 12] This definition is also inclusive and reflects the diverse experiences of persons with disabilities.

13. The ASC was created pursuant to the ACA to research, create and support the implementation of accessibility standards. [Endnote 13] The powers granted to the ASC include the development and revision of accessibility standards, recommendation of standards to the Minister, provision of information and resources regarding its standards, and research regarding identification and removal of barriers. [Endnote 14] The ASC is also required to publish any accessibility standards recommended to the Minister and its annual reports. [Endnote 15] These powers and responsibilities demonstrate that the ASC has a significant role within the ACA’s legislative framework to identify and remove barriers, while maintaining accountability to persons with disabilities and the Canadian public.

14. Minister Qualtrough stated that the ACA “will help develop a system in which the Government of Canada and the industry are required to anticipate barriers before they can limit access to persons with disabilities. [Endnote 16] This proactive approach should also apply to the development of accessibility standards. Since these standards are meant to address barriers relevant to the lived experience of persons with disabilities, it is crucial that persons with disabilities are meaningfully involved in their creation.

Barriers in Standards Development Processes and Section 6 Principles of the ACA

15. Section 6(f) of the ACA requires that “persons with disabilities must be involved in the development and design of laws, policies, programs, services and structures”. [Endnote 17] ARCH’s submission discusses what it means to “involve” persons with disabilities in standards development processes, with reference to section 6(f) and other section 6 principles.

16. This analysis accounts for the barriers documented in the independent reviews of accessibility legislation in Ontario and Manitoba, academic scholarship, the CRPD, and general comments authored by the UN Committee on the Rights of Persons with Disabilities (UN Committee). We first review the sources that we considered, and then draw on these sources to interpret the section 6 principles in the context of standards development.

Barriers Raised by Independent Reviews of Provincial Accessibility Legislation in Ontario and Manitoba

17. This analysis accounts for the barriers documented in the independent reviews of accessibility legislation in Ontario and Manitoba, academic scholarship, the CRPD, and general comments authored by the UN Committee on the Rights of Persons with Disabilities (UN Committee). We first review the sources that we considered, and then draw on these sources to interpret the section 6 principles in the context of standards development.

18. In Ontario, standards development committees developed and proposed accessibility standards regulations under the Accessibility for Ontarians with Disabilities Act, 2005. [Endnote 18] Each committee included persons with disabilities or their representatives. Although this model was seen as innovative at the time, it encountered significant challenges.

19. Similarly, Manitoba has enacted two accessibility standards under The Accessibility for Manitobans Act. [Endnote 19] Under this legislation, an Accessibility Advisory Council comprised of persons with disabilities and others develops standards based on the Minister’s terms of reference or provides a draft standard to a standards development committee for analysis. [Endnote 20]

20. In the sections that follow we discuss in detail the barriers that frequently arose in our research. Briefly, these barriers include:

21. An additional barrier to participation, often referred to as “consultation fatigue”, was also highlighted in the independent reviews of provincial accessibility legislation. Consultation fatigue occurs when participants are asked to take part in many processes, especially when they feel that their input has not been meaningfully considered.

22. For example, in Ontario, Mayo Moran described the “implementation fatigue, training fatigue and review fatigue” during her independent review of the AODA in 2015. She explained that, “[t]he time and energy of persons with disabilities involved in implementation – for example, those who participated in consultations for this Review – as well as of public sector staff responsible for accessibility – have, according to many, been taxed to the maximum. [Endnote 21] She attributed some of this fatigue to “complexity of the AODA regime and the lack of support for implementation. [Endnote 22] While Moran did not elaborate further, she did explain that the implementation of the AODA occurred more slowly than anticipated, and recommended that the Ontario government take steps to transparently and effectively enforce the legislation. [Endnote 23] This experience in Ontario highlights the importance of involving persons with disabilities in standards development processes in a meaningful way, consistent with the ACA and the CRPD.

Using the CRPD to Interpret and Apply the ACA

23. The CRPD is an important tool to interpret and apply provisions of the ACA in this context, since the ACA implements articles of the CRPD regarding accessibility and the creation and monitoring of minimum accessibility standards.

24. The preamble to the ACA states that, “[w]hereas Canada is a State Party to the United Nations Convention on the Rights of Persons with Disabilities and Canada has agreed to take appropriate measures respecting accessibility and to develop and monitor minimum accessibility standards.” [Endnote 24] This directly refers to article 9(2)(a) of the CRPD, which explains that state parties should “[d]evelop, promulgate and monitor the implementation of minimum standards and guidelines for the accessibility of facilities and services open or provided to the public.” [Endnote 25]

25. The Supreme Court of Canada has emphasized the importance of international obligations to interpret the domestic legislation meant to implement those obligations. Justice Gonthier stated for the majority of the Court that:

[i]n interpreting legislation which has been enacted with a view towards implementing international obligations, as is the case here, it is reasonable for a tribunal to examine the domestic law in the context of the relevant agreement to clarify any uncertainty. Indeed where the text of the domestic law lends itself to it, one should also strive to expound an interpretation which is consonant with the relevant international obligations. [Endnote 26]

26. Parliament’s stated intention to implement articles of the CRPD means that courts should interpret the ACA provisions consistent with CRPD obligations where possible, in order to give effect to this intention. [Endnote 27] Commentary of the UN Committee on the Rights of Persons with Disabilities, known as general comments, are also relevant to understand the meaning and normative content of CRPD articles, and how they apply in the domestic context.

Section 6(f): Involvement of Persons with Disabilities in the Design of Laws, Policies, Programs, Services and Structures

27. What does “involving” persons with disabilities in standards development require? Our research shows that involvement means continuous, transparent, and meaningful participation, with appropriate resources and supports. Moreover, it requires active participation, with the opportunity for discussion and dialogue.

i) A Continuous and Transparent Process

28. The UN Committee describes participation of persons with disabilities in law-making processes as an ongoing, continuous process, rather than a one-time event. [Endnote 28] This means that the ASC must provide multiple opportunities for persons with disabilities to participate in the standards development process.

29. In particular, the ASC should consider involving persons with disabilities early in the standards development process, [Endnote 29] when persons with disabilities have a greater opportunity to influence decisions about the standards the ASC will develop and the research they will conduct. When a conclusion has essentially already been reached, persons with disabilities feel that their opinions and participation are not valued, and that their participation is not meaningful. [Endnote 30]

30. During the Ontario standards development process, persons with disabilities were frustrated with the government’s slow progress in implementing and enforcing the AODA, [Endnote 31] which sent a message that their feedback and participation in standards development did not matter. Similarly, in a study conducted in Iceland, a participant stated that: “sometimes it feels to me as if it’s pro forma. They have to include us. And then it’s like decisions have already been made at some kind of pre-meeting, where you have the feeling that all the decisions have been made in advance.” [Endnote 32]

31. Continuous and early involvement is complemented by open and responsive communication whenever possible, a requirement that is also highlighted by the UN Committee. [Endnote 33] For example, clear communication of the steps of the ASC’s standards development process and its timelines will allow participants with disabilities to better understand their role and give helpful feedback [Endnote 34]

32. This is relevant to the ASC’s question regarding how frequently to send e-mails to persons with disabilities. More frequent communication by the ASC on a monthly, or even weekly basis if the ASC is working on a fast-paced initiative, would be preferable to communication every year or every six months.

33. Conversely, lack of transparency regarding the standards development process creates barriers for persons with disabilities. In Ontario, the terms of reference for the standards development committees were vague. [Endnote 35] As a result, Charles Beer recommended a clearer structure and accountability framework outlining the scope of the committees’ tasks. [Endnote 36] Meanwhile, in Manitoba, there was a lack of clarity about the nature of the standards development process. In her independent review of The Accessibility for Manitobans Act, Theresa Pruden stated that the process “is cumbersome and protracted, and has not been well understood even by some members of standard development committees. [Endnote 37]

34. Similarly, when there is no clear information about timelines, this may undermine the efficiency of the process and can lead to disagreements between stakeholders. In Ontario, some stakeholders were frustrated that the process moved too slowly, while others felt that more time was needed to clarify the costs and impacts of various options. Consequently, Beer recommended “[m]ore transparent timelines for the development of the standards and ongoing assessment of the feasibility of timelines.” [Endnote 38] Similarly, Pruden was concerned about the length of the standards development process in Manitoba and recommended clarity regarding timelines and more attention to efficiency. [Endnote 39]

35. In summary, our research demonstrates that involvement of persons with disabilities may require gathering feedback early, as well as throughout the course of the development of standards, while communicating information about the process in an open, accessible and transparent way.

ii) Facilitated Discussion with Meaningful Dialogue

36. Article 4(3) of the CRPD elaborates that, in the development of legislation and policies that affect persons with disabilities, State parties “shall closely consult with and actively involve” them. [Endnote 40] To interpret this article consistent with its plain meaning, “active involvement” must mean more than close consultation. It also must mean more than the one-way, often written processes. In contrast, active involvement requires a two-way discussion or dialogue that empowers persons with disabilities and enables policymakers to better understand their contributions.

37. The Voices of Individuals: Collectively Exploring Self-determination (VOICES) Project, based at the Centre for Disability Law and Policy at the National University of Ireland Galway, led by Professor Eilionóir Flynn, exemplifies active involvement. The project focused on the right to legal capacity, pursuant to article 12 of the CRPD. [Endnote 41] It paired storytellers possessing lived experience with respondents with diverse personal experience. [Endnote 42] Storytellers wrote narratives and respondents wrote responses about specific topics relevant to the project’s theoretical framework. [Endnote 43] The project produced an edited collection of these narratives and responses, but was also committed to ensuring that these stories had the potential to effect change.

38. In this regard, the VOICES Project then matched participants with policymakers positioned in leadership roles with the authority and influence to make actual change. [Endnote 44] Before the participants met the policymakers, the researchers discussed ground rules as well as the backgrounds of the policy-makers. [Endnote 45] The storytellers and respondents worked together to anticipate potential obstacles to change that a policymaker could raise, and how they could respond. [Endnote 46] They also identified the information that was most important for the policymakers to understand. [Endnote 47] The policymakers then met with the participants. After these meetings, the researchers held a session for feedback and reflection, asking each policymaker to commit to one small change to implement article 12. [Endnote 48]

39. The VOICES Project shows how storytelling, lived experience, and expertise of persons with disabilities can play a powerful role in law and policymaking. It also shows how persons with disabilities may be meaningfully included to impart their personal perspectives, knowledge, and expertise. It demonstrates the power of building community capacity, and its great potential, over time, to lead to helpful input by persons with disabilities.

40. Based on our research, an “active”, two-way process that promotes dialogue through discussion, focus groups or working meetings may yield more meaningful participation than passive written feedback processes. Two-way discussions allow difficult issues to be discussed productively, in a way that encourages problem-solving. In his evaluation of the Ontario standards development process, David Lepofsky stated that, “[o]n more important and contentious issues, there is no substitute for frank face-to-face exchanges. [Endnote 49]

41. A facilitated discussion may also be helpful in promoting more active participation. Facilitators should be persons with disabilities or have significant experience working with communities of people with disabilities. This will enable facilitators to break down barriers, rather than creating more of them.

42. The ASC should consider the potential for an “active” two-way exchange when selecting engagement strategies. Town hall discussions, group discussion on specific topics, one-on-one telephone calls, and engagement activities referenced in the ASC’s survey, have the potential to promote meaningful communication, depending on how they are structured. Furthermore, while the COVID-19 pandemic lasts, online meetings may also have the potential to promote dialogue.

43. Participants should be asked about their accommodation needs well in advance, such that there is time to determine and arrange new or more complex accommodations that are requested. The ASC should also provide any supporting documents in plain language and accessible formats. As well, the ASC should evaluate its engagement activities with reference to feedback from persons with disabilities who attended to determine if meaningful communication actually occurred, and how to improve these activities going forward.

44. The following sections provide further guidance regarding what “involvement” may mean with reference to other section 6 principles, including dignity, diverse participation and recognition of intersectional identities, and accountability, which is necessary to achieve “the highest level of accessibility for persons with disabilities” (s 6(g)).

iii) Resources and Supports Relevant to the Proposed Regulation

45. Persons with disabilities may also require technical resources regarding the standards under development or research currently being conducted or contemplated by the ASC. According to the UN Committee, existing or historical barriers to inclusive education may mean that persons with disabilities do not enter engagement processes on an equal basis as others. [Endnote 50] Participation cannot be meaningful where stakeholders have no real opportunity to affect the outcome because they do not have access to relevant knowledge and skill-development opportunities. [Endnote 51]

46. For example, Beer’s independent review revealed that a lack of support and resources for the Ontario standards development committees undermined their ability to function properly. [Endnote 52] In particular, this affected persons with disabilities who did not have the same access to resources and technical and legal advice that industry representatives did. In response to these concerns, Beer recommended “engagement of appropriate technical and sectoral expertise”, “credible background documents […] about evidence-based and best practices”, and “establishment of a formal orientation and training program for committee members.” [Endnote 53]

47. Following the CRPD and the academic literature, the ASC should make training, information, tools and other resources available to disability organizations and persons with disabilities to support capacity building. This would fall under the ASC’s mandate to provide information and services in relation to its accessibility standards. [Endnote 54] Skills training could address regulation development or technical matters relevant to the subject matter of the specific regulation. [Endnote 55] It could also focus on communication and negotiation skills relevant to providing feedback in person or in writing. [Endnote 56] Building the skills and knowledge that facilitate meaningful participation in standards development would empower communities of persons with disabilities as they question assumptions and develop their expertise. [Endnote 57]

Section 6(a): Dignity, Respect for Expertise, and Compensation

48. Section 6(a) of the ACA states that “all persons must be treated with dignity regardless of their disabilities. [Endnote 58] As noted above, the Supreme Court of Canada has recognized that human dignity is an “essential value” underlying the equality guarantee of the Charter. [Endnote 59] Conversely, persons with disabilities are denied dignity when they are subjected to stereotypes or barriers to full participation. [Endnote 60]

49. If the ASC does not approach the engagement process with an understanding of and respect for the perspectives that persons with disabilities bring, it may undervalue their expertise. This may cause participants to feel that their feedback does not matter, and may contribute to consultation fatigue. However, based on academic scholarship and experiences with Ontario’s standards development process, it is possible that taking steps to address this problem may facilitate a more productive conversation.

50. In this regard, it may be important for government stakeholders, staff and participants to understand human rights principles and the significance of receiving the perspectives of persons with disabilities. For example, in Ontario, David Onley’s independent review of the AODA received feedback recommending a more “collaborative conversation” as opposed to the adversarial negotiation structure that characterized many standard development committees. [Endnote 61] One solution proposed to him was that the Ontario Human Rights Commission should provide human rights awareness training for government staff and committee members. [Endnote 62] As well, persons with disabilities can provide critical awareness-raising to enable staff involved in standards development processes to better understand the lived experiences of persons with disabilities, ableism, accessibility, diversity within disability communities, and intersectional discrimination. [Endnote 63]

51. Furthermore, the ASC can also demonstrate respect for the expertise of persons with disabilities by providing compensation for their expertise, time and effort. [Endnote 64] The UN Committee explains that states “should strengthen the capacity of organizations of persons with disabilities to participate in all phases of policymaking, by providing capacity-building and training on the human rights model of disability, including through independent funding.” [Endnote 65] They also recommend that states “allocate funds for consultation” that are provided to diverse persons with disabilities, “including sustainable core institutional funding”. [Endnote 66]

52. Failure to provide compensation is a significant barrier that was identified in the independent review of the Ontario standards development process. [Endnote 67] Persons with disabilities “are a large and substantially disadvantaged minority. [Endcote 68] They are underrepresented in the workforce and in postsecondary education, but overrepresented among persons living in poverty. [Endnote 69] They also face “chronic disadvantage […] from decades of barriers that impede persons with disabilities from fully participating in society” and discriminatory attitudes and stereotyping “that equate disability and inability. [Endnote 70] While some disability organizations have public funding, much of this funding is not stable, “core” funding, which creates significant barriers to undertake and facilitate long-term capacity building.

Section 6(e): Diverse Participation and Recognition of Intersectional Experiences

53. Section 6(e) of the ACA states that “laws, policies, programs, services and structures must take into account the disabilities of persons, the different ways that persons interact with their environments and the multiple and intersecting forms of marginalization and discrimination faced by persons”. [Endnote 71] In this regard, the CRPD requires regulators to make best efforts to receive the perspectives of diverse communities of persons with disabilities [Endnote 72]

54. The lived experience of persons with disabilities “is both complex and diverse and there is no monolithic experience of having a disability. [Endnote 73] Furthermore, persons with disabilities also make equality claims based on multiple sites of discrimination that are “distinct” from discrimination faced by any of the individual grounds alone. [Endnote 74]

55. Sherlaw and Hudebine point out that persons with disabilities and their representative organizations may take different views and approaches to the same issue. [Endnote 75] Laverne Jacobs, Britney de Costa, and Victoria Cino also observe that the distinct lived experiences of persons with disabilities are informed by other personal characteristics, such as race, gender, sexual orientation and others. [Endnote 76] If certain groups or persons with disabilities cannot participate in the standards development process, this could significantly limit the diversity of perspectives available to the ASC.

56. The under-inclusive nature of consultations was raised as an issue in the Ontario standards development process, as well as in jurisdictions outside Canada. [Endnote 77] Beer’s legislative review described concerns that persons with non-evident disabilities, such as mental health or learning disabilities, were underrepresented. [Endnote 78] This problem persisted, according to Onley, who recommended that the Ontario government ensure cross-disability representation on standards development committees, including persons with evident, non-evident and episodic disabilities and a range of ages. [Endnote 79]

57. Our research demonstrates that the ASC should take proactive measures to reach groups that may face particular barriers to participation, such as persons with intellectual disabilities, communication disabilities, or episodic disabilities. [Endnote 80] In other words, it is not enough to receive feedback from a limited group of participants, or participants who have contributed to engagement processes in the past – for example, those with particular types of disabilities or urban dwellers may be more likely to take part in policymaking. [Endnote 81]

58. Therefore, in determining whether inclusive participation has occurred, our research shows the ASC should consider who participated and what perspectives they represented. It is important for the ASC to develop outreach and engagement approaches that are as inclusive as possible.

Section 6(g): Accountability and Achieving the Highest Level of Accessibility

59. Section 6(g) of the ACA states that “the development and revision of accessibility standards […] must be done with the objective of achieving the highest level of accessibility for persons with disabilities.” [Endnote 82] However, since “the highest level of accessibility” should be measured against the feedback and recommendations from persons with disabilities themselves, the ASC should be transparent about how they consider feedback and why it decided not to adopt certain feedback at all.

60. A barrier to effective participation in the standards development process relates to lack of communication by regulators about how they consider and use feedback they receive. For example, in Manitoba, Pruden recommended that committee members should be informed about what happens to their proposed standard by creating an information feedback loop. [Endnote 83] Pruden also suggested that work prepared by committees as well as the Accessibility Advisory Committee be posted online permanently to promote transparency. [Endnote 84]

61. To address these concerns, the ASC could adopt the LCO’s recommendation that government should document their analysis and decisions throughout the law-making process. [Endnote 85] This could mean explaining how the feedback of persons with disabilities was used to inform the text of a standard or other resources or initiatives of the ASC, and why certain feedback was not found to be helpful. This information could be included in the ASC monthly or weekly e-mails, and could be published on the ASC’s website.

Conclusion

62. In this submission, ARCH analyzes the role of the ASC in the context of our research and analysis of inclusive regulation and standards development processes. This submission is endorsed by the Canadian Association of the Deaf, Communication Disabilities Access Canada, Council of Canadians with Disabilities, and the National Coalition of People Who Use Guide and Service Dogs in Canada.

63. The ACA was enacted to enable the full and equal participation of persons with disabilities in society, in accordance with substantive equality, the Charter, and the CRPD. To ensure that accessibility standards promote the highest level of accessibility, the ASC has an important role to involve persons with disabilities and conduct its research and standards development in ways that reflect their lived experience.

64. However, the ASC must recognize that there are barriers to inclusion of persons with disabilities in standards development processes themselves. Standards development processes have the potential to facilitate meaningful, two-way communication that empowers persons with disabilities to give feedback that will be heard and seriously considered. However, these processes also have the potential to be bureaucratic and opaque, to convey that the feedback of persons with disabilities does not matter, and to exclude certain persons with disabilities, such as those who live in poverty.

65. To develop best practices for its engagement with persons with disabilities, the ASC must take a long-term approach that prioritizes capacity-building, values the expertise of persons with disabilities, and provides compensation for that expertise. The ASC can learn from standards development processes in Ontario and Manitoba to build on these existing processes and improve them. While this may require more time, training, and innovation at the outset, it will eventually lead to more meaningful research and standards development consistent with substantive equality and principles of the ACA.

Endnotes

1. Accessible Canada Act, SC 2019, c 10 [ACA], preamble
2. Canadian Human Rights Act, RSC 1985, c H-6 [CHRA]
3. Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008, Convention ratified by Canada on 11 March 2010, Optional Protocol ratified by Canada on 3 December 2018) [CRPD]
4. Quebec v A, 2013 SCC 5 at para 200
5. R v Kapp, 2008 SCC 41 at para 21 [Kapp]
6. Ibid, preamble
7. Canadian Charter of Rights and Freedoms, s 15, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]
8. ACA, above, preamble
9. ACA, above, s 2
10. Bill C-81, “An Act to ensure a barrier-free Canada”, 2nd reading, House of Commons Debates, 42-1, No 321 (21 November 2018) at 1525 (Hon Carla Qualtrough)
11. ACA, above, s 2. This section also specifically states that this definition applies to “persons with an impairment, including a physical, mental, intellectual, cognitive, learning, communication or sensory impairment or a functional limitation.”
12. Ibid
13. Ibid, s 17
14. Ibid, s 18
15. Ibid, s 34, 36
16. Bill C-81, “An Act to ensure a barrier-free Canada”, 3rd reading, House of Commons Debates, 42-1, No 355 (19 September 2018) at 1530 (Hon Carla Qualtrough)
17. ACA, above, s 6(f)
18. Accessibility for Ontarians with Disabilities Act, 2005, SO 2005, c 11
19. The Accessibility for Manitobans Act, CCSM c A1.7
20. Theresa Pruden, “Independent Report on the Effectiveness of the Implementation of The Accessibility for Manitobans Act” (December 2018) at 15, online: http://www.accessibilitymb.ca/pdf/ama-review.pdf
21. Mayo Moran, “2014 Legislative Review of the Accessibility for Ontarians with Disabilities Act” (2014) at 30, online: https://www.ontario.ca/document/legislative-review-accessibility-ontarians-disabilities-act
22. Ibid
23. Ibid at 21, 30, 56-60
24. ACA, above, preamble
25. Ibid, art 9(2)(a)
26. National Corn Growers Assn v Canada (Import Tribunal), [1990] 2 SCR 1324 at 1371 [National Corn Growers]. Justice Gonthier also explains in the following paragraph that the implementing statute is not required to be ambiguous on its face for this principle to apply. See also: Re: Sound v Motion Picture Theatre Associations of Canada, 2012 SCC 38 at para 51
27. Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed (Markham: Lexis-Nexis, 2014) at 585-596. Sullivan cites National Corn Growers, along with other cases, and explains that legislation implementing an international convention should be interpreted consistent with the convention where possible, even if there is no ambiguity.
28. General Comment No 7, above at para 28. Similarly, the Law Commission recommends that governments take steps “to ensure that all stages of public consultation are accessible to persons with disabilities: Law Commission of Ontario, above 12
29. General Comment No 7, above at para 43.
30. William Sherlaw & Hervé Hudebine, “The United Nations Convention on the rights of persons with disabilities: Opportunities and tensions within social inclusion and participation of person with disabilities” (2015), 9:1 European Journal of Disability Research 9 at 16; Löve et al, above at 9; Löve, Traustadóttir & Rice, above at 3, 6. See also Law Commission of Ontario, above at 11-12
31. Moran, above at 30, 56-60
32. Laufey Löve et al, “The Inclusion of the Lived Experience of Disability in Policymaking” (2017) 33:6 Laws 1 at 9
33. Ibid at paras 23, 33; Löve et al, above at 9-10
34. General Comment No 7, above at para 94e and u
35. Charles Beer, “Charting a Path Forward: Report of the Independent Review of the Accessibility for Ontarians with Disabilities Act: a report by Charles Beer on his findings and recommendations for improving the effectiveness of Ontario’s accessibility laws” (2009), online: https://www.ontario.ca/page/charting-path-forward-report-independent-review-accessibility-ontarians-disabilities-act (not paginated)
36. Ibid
37. Theresa Pruden, “Independent Report on the Effectiveness of the Implementation of The Accessibility for Manitobans Act” (December 2018) at 15, online: http://www.accessibilitymb.ca/pdf/ama-review.pdf
38. Charles Beer, above
39. Pruden, above at 16, 18-19
40. CRPD, above, art 4(3)
41. Clíona de Bhailís, “Theoretical Framework for the VOICES Project”, eds Eilionóir Flynn et al, Global Perspectives on Legal Capacity Reform: Our Voices, Our Stories (Routledge: Abingdon, 2019) 1 at 1-8
42. Eilionóir Flynn, “Project methodology and background”, eds Eilionóir Flynn et al, Global Perspectives on Legal Capacity Reform: Our Voices, Our Stories (Routledge: Abingdon, 2019) 9 at 9-15. The experience of respondents included lived experience, as well as professional backgrounds in varying disciplines.
43. Ibid
44. The positions, professions and backgrounds of the policy-makers were diverse, ranging from transportation to banking to education to guardianship: VOICES Project, online: https://ercvoices.com/resources/toolkit/outputs-and-impact-2/
45. Ibid
46. Ibid
47. Ibid
48. Ibid
49. David Lepofsky, “What Should Canada’s Proposed Accessibility Law Include? A Discussion Paper” (2018) 38:1 NJCL 169 at 186
50. General Comment No 7, above at paras 58-60
51. Laufey Löve, Rannveig Traustadóttir & James Gordon Rice, “Achieving Disability Equality: Empowering Disabled People to Take the Lead” (2017), 6:1 Social Inclusion 1 at 6; see also Löve et al, above at 11
52. Beer, above
53. Beer, above. After changes were made, David Onley reported mixed feedback. Some participants found the orientation and technical expertise useful, while some disability representatives state that they may have benefited from more supports: David Onley, “2019 Legislative Review of the Accessibility for Ontarians with Disabilities Act, 2005” (2019) at 29, online: https://www.ontario.ca/page/2019-legislative-review-accessibility-ontarians-disabilities-act-2005
54. ACA, above, s 18(c)
55. General Comment No 7, above at para 58
56. Ibid at para 58-60; Löve et al, above at 10-11
57. Rita Samson, “Securing the Full Participation of Persons with Disabilities and their Representative Organizations in Disability Rights Monitoring” in Marcia Rioux, Paula Pinto & Gillian Parech, eds, Rights Monitoring and Social Change: Building Power out of Evidence (Toronto: Canadian Scholars Press, 2015) 238 at 246; General Comment No 7, above at para 58
58. ACA, above, s 6(a)
59. Kapp, above at para 21
60. Quebec (Attorney General) v A, 2013 SCC 5 at para 199
61. Onley, above at 29-30
62. Ibid
63. Scotland, First Minister’s Advisory Group on Human Rights Leadership, “Recommendations for a new human rights framework to improve people’s lives” (10 December, 2018) at 40, online: https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf; General Comment No 7, above at para 60
64. General Comment No 7, above at para 60-61. This is consistent with the UN Committee’s interpretation of articles 4(3) and 33(3) of the CRPD as requiring governments to provide representative organizations of persons with disabilities with core institutional funding and to ensure the autonomy of these organizations.
65. General Comment No 7, above at para 60
66. Ibid at para 61
67. Charles Beer, above. When more members were added to the committees, this also led to an increase in workload and delays that were not anticipated.
68. Lepofsky & Graham, above at 138
69. Ibid at 138-139
70. Ibid at 139
71. ACA, above, s 6(e)
72. General Comment No 7, above at para 50. This includes organizations representing children and womenwith disabilities, in addition to those representing a wide diversity of actual or perceived disabilities (para 28). To this end, the UN Committee has established criteria for representative organizations that participate in law-making processes, relating to their: goals to pursue the rights of persons with disabilities; employees and representatives being persons with disabilities; lack of affiliation with political parties and public authorities, and reflection of a diversity of backgrounds, whether they are focused on an actual or perceived disability or all persons with disabilities (para 11).
73. DisAbled Women’s Network of Canada, “More than a Footnote: A Research Report on Women and Girls with Disabilities in Canada” (2019) at 23, online: https://dawncanada.net/media/uploads/page_data/page-64/more_than_a_footnote_research_report.pdf.
74. Carol Aylward, “Intersectionality: Crossing the Theoretical and the Praxis Divide” (2010) 1:1 Journal of Critical Race Inquiry 1 at 16-17
75. Sherlaw & Hudebine, above at 15
76. Laverne Jacobs, Britney de Costa & Victoria Cino, “The Accessibility for Manitobans Act: Ambitions and Achievements in Antidiscrimination and Citizen Participation” (2016) 5:4 Canadian Journal of Disability Studies 1 at 10
77. Under-inclusive representation of persons with disabilities is also an issue outside of Canada. In a research study conducted in Iceland, no organizations meeting the CRPD definition of representative were included in the working group for legislation regarding persons with disabilities, and for a period of time, no persons with disabilities were included at all: Löve et al, above at 8, 11
78. Beer, above
79. Onley, above at 29
80. Sherlaw & Hudebine, above at 15-16; General Comment No 7, above at para 54
81. Raymond Lang & Ambrose Murangira, “Barriers to the Inclusion of Disabled People and Disability Policy-Making in Seven African Countries” included in Jukka Kumpuvuori and Martin Scheinin, eds, United Nations Convention on the Rights of Persons with Disabilities – Multidisciplinary Perspectives (Helsinki, The Center for Human Rights of Persons withDisabilities in Finland, 2010) 159 at 170-171, 180-183
82. ACA, above s 6(g)
83. Pruden, above at 18
84. Ibid
85. Law Commission of Ontario, above at 116