What should Canada’s promised national accessibility legislation include?
Articles,  Blog

What should Canada’s promised national accessibility legislation include?


– Good afternoon everyone. 36 years ago, when our prime minister was
a felony Pierre Trudeau, our country was embarking on an exciting and controversial process of creating its first
constitutional Charter of Rights and that Charter of Rights when it was introduced before parliament had any number of important rights, including a guarantee of
equality in Section 15. But the guarantee of
equality in Section 15 was written in a way so
that it did not include equality for people with disabilities. Not only didn’t include it but it was written away where
courts couldn’t read it in. This let number of us,
me, then a law student, many of us across the country to be motivated to get into action. We fought for and
ultimately campaigned for and won collectively, an amendment to the Charter of
Rights before it was enacted to include equality rights
for people with disabilities. Make Canada really a leader
around the world for its day. But 36 years later how is it working, do people with disabilities in Canada experience equality? Are we fully included in our society? Well, just looking at
the federal sphere alone the answer is a resounding, no. There are a pervasive number of barriers that impede people with disabilities, whether your disability a
physical one, a mental one, a sensory disability,
intellectual disability or learning disability, a
mental health disability, whatever kind of disability
it is you face barriers when you try to avail yourself
of the goods or services or facilities offered to us
by the federal government or organizations that the
federal government can regulate or influence. When you go get yourself
a cable TV service, you can get yourself a PVR choose what channels to watch record and watch them. Except if you’re blind or dyslexic you can’t read what’s on the screen. Federal laws in the states
have required cable companies to provide an accessible PVR in Canada. One company to my knowledge, a provides one another is at least talk to us about
starting to provide one but they’re not pervasive. When you turn on your computer be able to go online and surf to get access to goods and
services from companies, from the federal government
or from organizations the federal government
can regulate or influence you’ll find that a lot
of them offer information and services on their websites but there is no assurance
that they are accessible to the technology that people with disabilities used
to be able to read them. In fact a decade ago, a colleague and friend Donna Chad Hill had to sue the federal
government of the charter rights to try to get an order to force them to comply with whatever
the accessibility says the government itself proclaimed for itself but wasn’t yet,
wasn’t then following. Federal government fought she won they appealed she won again. When you can only take part in travel that the federal government can regulate whether it’s air travel or
provincial train travel. Barriers face passengers
with disabilities to this day even though there’s a regulatory agency, the Canadian transportation agency that’s had power and a mandate to try to address that
it’s done it ineffectively. The barriers go on and on. Well commendably in the last
federal election two years ago the son of Pierre Trudeau, Justin Trudeau when campaigning for office made a promise in response
to inquiries from those of us from the disability community. We asked if he would provide, if elected whether he would enact a new
national accessibility law, one that would make the
rights guaranteed to us in the Charter of Rights in
the Canadian Human Rights Act. A reality, make it work. And he said, yes. So did the Green Party and
so did the New Democrats. The question that’s, that I’d
like to address to you today is what should that law include, commendably the federal government had a national consultation
on what it should include it’s had roundtables on
what it should include, I had the privilege of taking part in them and it’s going to introduce
a bill into parliament within the next couple of months. So we as a community need to be ready to look at it and see what it includes and whether it has everything we need. I’m going to take you
through some suggestions of what I think it needs. It can and embarking on this we are joining an international trend where we have fallen
way behind, way behind. In 1990 the US passed the
Americans With Disabilities Act and started a trend that
has spread to several, a good number of
countries around the world and led other countries
around the world to, more and more look into
the idea of passing their own national
accessibility legislation. Similarly over a decade ago the United Nations passed the convention on the rights of people with
disabilities, Canada signed it but our lack of a
national accessibility law has meant that we’re not living up to what we need to do. Well before I talk to you about
what the law should include I need to spend a couple of
minutes on what the problem is that is trying to solve. Well the problem as I just illustrated is that we people with disabilities live in a world full of barriers. Some of them are old, they’ve
been around for a long time like some older buildings, some of them are new like this Law School where I’m speaking to you right now whether you renovated the building and made it frankly worse, much worse for a blind person like
me to find our way around. Some of the problems are old because we’re using old technology and some of them are because
are arise from new technology that we can’t deal with. Many of them could be fixed at low cost and all of them could be
prevented at little or no cost. Why do we build the world this way, the buildings, the laws,
the technology, the services we do it because too often organizations tend to target what they
do for what they think is the average person,
the average consumer, the average customer, the average student. But the average customer,
student in this fictional world since none of us are that average person, they typically don’t have a disability. We design a world historically and operated as a people with
disabilities just aren’t there this is an absurdity because
people with disabilities are not only there but we’re everywhere. If you don’t have a disability now you’re going to get one later as your age, we are the minority of everyone. And so this idea of designing a world is of people with disabilities
are not there is ridiculous and a law that would change that is a law that would help everybody. Well, a law, don’t we
have a law on the books don’t we have any laws and the answer is, hey, we actually have a whole lot of laws. I’m not just talking
about the federal sphere I’m talking about what’s going
on at the provincial level but within the range of
what of the federal sphere we’ve got the Charter
of Rights since 1982. Which guarantees a
constitutional right to equality at the hands of the government and government agencies and organizations implementing
government programs that’s really important. Since the early ’80s the
Canadian Human Rights Act has been discrimination
within the federal sphere. But there’s more the Canadian
Transportation Agency has parallel human rights
provisions and powers to enforce it. Similarly with in the
area of transportation that the federal government
can regulate like, like air travel or in a
provincial train travel. Well, moreover when it comes to areas like broadcast or telecommunications services telephone, cell phones and so on the Canadian Radio television telephone Telecommunications Commission CRTC it too has had a power in this area they and, and yet whatever action those agencies have
taken the CRTC, the CTA have taken. It’s been too little and it’s not working. Yeah, we’ve made some progress, I’m not saying they’re doing nothing but on their own they’re not working. These laws don’t work for several reasons. They haven’t solved our problem, old barriers aren’t
coming down fast enough new ones aren’t being prevented with great enough reliability
for several reasons, the first thing is that in many cases they don’t provide detailed
specificity to organizations what exactly they got to do. They speak often in general terms the Charter of Rights says, it guarantees equality and
prohibits discrimination but that doesn’t tell the government what their website should look like. Human rights code the same thing and too often that’s the case with regulatory legislation too. Moreover these laws
largely not all of them but require individuals to
litigate barriers one at a time. Most people with disabilities
won’t or can’t afford to and in the federal sphere
often who they’re up against or the likes of government of Canada or Bell Canada or Rogers
or Via Rail or the so on big airlines. It’s quite an unfair match but there are other reasons that they, that there’s probably they’re
working to the extent that they’ve delegated this
to different agencies that means the people with disabilities have to run all over the place, do, do I go to the Human Rights Commission part of it may go to the
Canadian transportation agency. Oh, this one goes over to the CRTC. It’s great for regulatory for, pardon me it’s great for big companies because they can keep
you running in circles but not great for you if you’re trying to get your rights enforced. And finally the problem with having
different regulatory agencies divide this up rather than
having one stop shopping is they tend to have a little
bit too close relationship with the industries they regulate and therefore not enough of a relationship with the people with disabilities who they should be
serving in this context. So there’s one more reason why they were in the pickle we’re in. And that is we’ve learned, we folks in the disability
community in advocacy world that the most commonly articulated aphorism of how to solve this actually doesn’t work. Lot of people saying,
the problem is not that people have it against you guys it’s just they don’t know any better they are not leave you out or creating barriers intentionally. It’s just they never thought of it so we just got to raise awareness. So you know, but we’ve,
we’ve tried raising awareness for years, for decades and sometimes convince some
people to do the right thing but even then if it does they may not be the
person in the organization with the authority to do the right thing. They get overruled by somebody
higher up in the organization raising awareness doesn’t
work as the solution it can help but it is not the solution. It is not predominantly the solution and yet it’s been the focus of a great deal of comment
and proposals and so on. So, what we need? Well, let me summarize
and let me go into details what we need is a comprehensive new law that will implement the rights
that the Charter of Rights and the Human Rights Code
federally guaranteed to us as people with disabilities. That provides the specificity
that organizations, obligated organizations need so they know what they got to do and that is enforced without us as individuals having to be
private accessibility cops individually fighting
barriers one at a time. And we have experience with this, they’ve done this to some
extent in the United States in the Americans with Disabilities Act. Ontario in 2005 commendably passed the accessibility for Ontarians
with Disabilities Act. I had the privilege of leading
the decade long campaign to get that law enacted and I been leading the
campaign in recent years to try to get it effectively implemented. Similarly Manitoba passed a comparable law the accessibility for Manitobans Act in 2013 and then last year Nova Scotia did the same. But we don’t have anything
in the other provinces and we don’t have anything nationally. This law needs to have a
number of key ingredients I’m just going to mention some, I’m then going to explore
them in some detail with you over the next few minutes. It needs to have the goal of achieving a fully accessible Canada the extensive the federal
government can do it A core feature in it which
I’ll speak more about is it should mandate
and require the creation and the enforcement of a series of accessibility regulations that we call accessibility standards, because it tell obligated organizations exactly what they’ve got to do. Not in vague terms but in
really specific clear terms. It should be effectively
publicly enforced, it should use all the levers of power that the federal government
can get its hands on to promote its goals. Importantly it should be operated in a way that net makes us money that saves the public taxpayer and benefits obligated organizations because they’re going to get
a greater pool of employees and customers. And this is very important, anything it does should only advance the rights of people with
disabilities nothing in it should slow things down
or weaken their rights. How do we do that? Well, what I’m going to propose draws on what we’ve learned in Ontario and I was there at the table negotiating for the contents of that legislation and been involved in the fight to get it effectively implemented since there’s been a position
to know a lot about that What we’ve learned in other provinces, what we learn from the States and what we’ve learned
from other countries. Let me dig in to the core ingredients based on that overall summary. First we’ve got to be clear
what the purpose of the law is it should set out said its
purpose in clear terms. And that purpose as I said, should be to ensure that Canada becomes to the extent the federal
government can get us there fully accessible to
people with disabilities by a deadline that it sets. Now I’m not naming a specific deadline I think that’s something
we’ve got to negotiate. The provincial government
in Ontario back in 2005 said 20-25 gave the province 20 years. I think that was a good idea some thought it was too short nobody thought it was too long but it any of it the idea of a deadline starts the clock ticking. It leads us all to say,
are we on schedule? Are we moving quickly enough, it lets the government look at this but it lets individual
organizations also say what’s our plan for getting
the full accessibility by that deadline. The it is important that
in framing that purpose of that we not use mushy words. It’s not good enough to say, we’re going, the purpose of the law is
to improve accessibility while I’m very complimentary
the federal government’s openness to inputs and it’s open consultations
it’s conducted. There are some areas that I have had some that I
propose in my Coalition has had some difficulties. They initially proposed that the purpose of a national accessibility law would be improving accessibility. We say that sounds good
but it is way too weak one ramp in Red Deer Alberta and we’ve achieved the laws goal. One new accessible website in somewhere in the Northwest Territories and we’ve improved accessibility, not much but some. Our goal has to be not just
improving successability, accessibility but achieving accessibility. Anything else and it
becomes kind of mushy words that either bureaucrats or, or others will hide behind
to justify doing little and certainly not enough. Similarly it’s not enough to frame it as the goal is to substantially improve accessibility or make Canada the most
accessible country. Those are kind of words
that make things sound good but they just, they don’t work. We’ve learned in Ontario, the goal has got to be accessibility and commendable that the
Ontario government set that goal though criticism the Ontario government of for not doing enough to achieve it bits of that will come up
over the next few minutes. The final thing is in terms
of framing the purpose it should be in relation,
not only to federally regulated companies and organizations but in relation to any
organization that the Fed, Federal Government can reach and you’re going to hear
in a few minutes some ideas of how the federal government could have a significant impact even within provincial jurisdiction without violating provincial jurisdiction. Well, how do you do this,
how do you achieve this goal? Well one and I’m talking a lot about
a subset of legal stuff because the legal rights are
actually set out in the charter and the Canadian Human Rights Act but there are two really
important operative terms that need to be defined and they need to be defined broadly disability and barrier. Because any accessibility
standards that are created any enforcement steps, any action on anything
I’m going to talk about this afternoon will hinge
on how they’re defined. More or less the Ontario
legislation has done it well. They should both be broadly defined, in terms of disability my suggestion is that it should first should indicate that it’s any disability whether
it’s caused by birth, injury, illness or aging are human rights codes haven’t
used the term or aging, in fact the Ontario’s
accessibility law does neither but I think that’s a great addition. Similarly, I think they should list a number of the conditions
known to be covered. Now some may critique that
within the disability community by saying that’s more of a
medical model of disability it’s contingent on
diagnoses, my answer is this it shouldn’t be limited
to that list of conditions but it should include them because if you are not a lawyer and you are not a disability expert and you have to implement
this law in your business or your government department. You should be able to
look at the definition of disability and go, autism is there, okay, I got
to do something about it. Blindness is there, using
a service animal is there whatever it may be the list may be long and it may not be, there may be conditions we
haven’t yet contemplated but by listing them as
part of the definition that will ensure that
people using this law will know for certainty
without having to get all lawyered up what they got to do. Similarly definition of
barrier needs to be a broad one and it should be anything
which can impede you from fully participating
due to your disability in the good, services,
facilities or employment or other opportunities that
the organization can provide. And it’s really important to be clear with examples of barriers, again not meant to be
exhaustive or definitive. Because many lay people looking at this legislation,
when they hear accessibility they think of stairs
to get into a building built environment barriers. And while they’re important
they’re not the only ones and we’ve got to make it clear that the full spectrum
of barriers are covered. Everything else I’m gonna talk about now is about implementation, is about designing the
implementation strategy for this, literally everything else. So the first of the many implementation
strategy I want to propose this law should have is that it should, this is a huge heading. Put someone in charge. What we’ve learned both
at the provincial level and then within individual
organizations and companies, is that you make way more
progress on accessibility if there’s someone in charge. At the government level we need a minister who is responsible for leading the, the regulatory implementation of the act bringing forward the
regulations and so on. And another minister who
is separately responsible for leading the government’s
actual compliance but with the act. The complaints minister can
have other responsibilities but they certainly have to have one person where the buck stops. The prime minister
needs to have one person he can turn he or she can turn to and say, are we doing everything we
should be doing and so on. Similarly within
organizations we’ve learned that they need to have
over their large enough and federally regulated
companies are often very large. They need to have a chief
accessibility officer in charge, reporting to the top. IBM in the States has one, Microsoft has one, Apple has one it’s a model that helps,
it’s been proven to work. But nationally the in charge should first be the federal government and within the federal
government designated officials both elected and public servant officials. It’s not good enough to
have a law that just says full accessibility is our
goal in 20 years or 15 years. It’s absolutely important that it indicate that the government is the body that’s mandated to lead us
there, that’s their job. That’s what the Ontario law
does and it’s commendable. Now but doesn’t mean you
expect to govern to go and tear down every flight of stairs and any organization that
the feds could regulate (mumbling) The law would then go on to (mumbling) what the federal government needs to do to fulfill its job and to lead us to the goal that it sets. and that in turn is where I will be spending
the rest of my time. But in spelling out that
roadmap or series of obligations it also should build in
accountability features I’ll offer you some. And recourse for us the public if they don’t live up
to it their obligations that are imposed on the government in its role to lead us there. So, government has two roles it’s got to lead our society there but within as much as the
federal government can and it’s got to bring
its own house in order. One is more of a regulatory role and the second is a compliance role. So what should be on that
menu of its obligations? We spend our time on that, the first of these is that
the federal government should be required to enact
a series of regulations as I earlier said to be
called accessibility standards which will spell out either
on a sector by sector basis or on an activity by activity basis what an organization has to do specifically and when they go to do it by. They can set different rules
for bigger organizations than smaller organizations
for the public sector versus the private sector. But they should be the kind of regulations that it obligated organization whether it’s the Department
of the federal government or, or its Air Canada or
Rogers can turn to and say, okay, this is what we got to do. Hopefully it will be,
if they’re done right it will all be stuff that they would if wise say, this is all stuff
we should be doing anyway. So what makes and as, so what could they, what
areas could they make them in and how many should they make? Well I borrow from Ontario that has set a good legislative model. It provides that the Fed, the
provincial government not only they make access standards but it must and then it goes on to not just provide that it must make access standards but actually specifies
that the Ontario government must make all the accessibility standards needed to achieve the purpose of the law. What that means is, if the Ontario government
were to do its job it would make enough
accessibility standards so that if they were fully complied with we would achieve full
accessibility by 2025. Same should be the case for
the National accessibility law whatever deadline it sets
for achieving that goal it’s acts, it should be required to make all the accessibility standard needed to ensure that
we achieve that goal. And, it’s an unusual design most
laws that allow a government to create regulations don’t require it and the rare time they require
it don’t quantify how many here we should. What areas could they make the bill, well Ontario has made several that, well I would criticize
them as being too weak there are in areas that
are really good choices. They have addressed some
of them by subject matter one is, is in the area of transportation accessibility, they agreed to now to do one
in the area of health care and another one in the area of education and others they’ve done are in the area of more broad character,
categories of activity that cut across all
sectors of the economy. They’ve created the
accessibility standard addressing accessible customer service, employment access to information, communication like websites. And part though certainly nowhere near all of the built environment. So of those several would
fit the federal sphere customer service would, employment would information communication
would for example and the built environment certainly would. To an extent the federal government would address health care we’ll talk about it in a few
minutes in a different context. But there are other areas
that we could envisage effective federal regulatory
standards being made that are specifically federal. Accessible banking services
would be a good one. Accessible telephone and
telecommunications services, wireless services and so on. Similarly accessibility of air travel and any travel that the federal
government can regulate. Accessibility of broadcast. How much closed captioning
we get on our TV programming or for those of us who are blind audio described TV programming
are just some examples of that I would offer. So and I can imagine more but those are the kinds of areas, so what should the
accessibility standard include? Well, if it’s done right, you’d pick it up and
read it, it will tell you what kind of barriers
you’ve got to address and what you’ve got to do to address them. Sometimes they can be so
detailed as to tell you exactly what to do like how
high a counter height should be to be accessible. In others it may set adopt
international requirements like for website accessibility. There’s a good international
standard you just opt in and employ that. But it should lead an organization to be able to ask the question
what the heck do I have to do and look at the standard
and get the answer with as much clarity as possible. Organizations will like that so they don’t have to reinvent the wheel. People with disabilities like that because will know what kind,
what we’re what to expect and what we are entitle to ask for without having to go through some long constitutional argument or human rights argument
just to set the standard. That kind of legal argument is very cool in a law school class or
in a law journal article and as a lawyer who might
want to argue one of those it’s a lot of fun to do but the folks who need
these barriers removed need these barriers removed and a clear specification regulations going to do way better
job than leaving it to long protracted litigation
that most can’t afford. So, what standard do we
apply to the standards, well my proposal is that standards enacted under this legislation should aspire to fully implement the rights that people with disabilities enjoy under the Charter of Rights and the Canadian Human Rights Act. Now they may not be able
to cover every last barrier and you still may have to file an individual human rights complaint in some offbeat setting that
the regulation contemplate. But at the very least a company or a government department
should be able to have confidence that if they’ve complied with the standard they’ve complied with the charter
and the Human Rights Code. The problem with the regulatory standards that have been passed in Ontario the accessibility standards is for the most part they are too weak. So that a company that brings themselves or a government department
or a school board that brings themselves into compliance may well still be exposed to a human rights or charter complaint depending if they’re
public or private sector. Because they made I’ve done
everything they need to do and because nothing under this
national accessibility act can or should ever take our rights away we would never condone a situation that as system and said, well, as long as you complied with these federal regulatory standards you are free of complaints
under the charter no matter how weak the
federal standards are. Rather what we should aspire to is having the government
enacting accessibility standards under accessibility law which are strong enough that they meet or exceed the charter and human rights threshold that organizations have to fulfill anyway. Well after you make these standards are they done? No, periodically they should be reviewed under the Ontario’s laws
it’s every five years that makes sense to see if
either things have changed we passed a standard that
governs website accessibility in 2011, it was quite good for its day not quite as good as
I’d like but quite good but since then we’ve got new
things that have come along websites practices have changed, mobile apps have come along. Now that regulation is now
being reviewed provincially and it’s good it is because it gives us a chance to expand it. So then comes the next huge question if we’re going to have these
accessibility standards. What, how you make them,
where do they come from? Pluck them out of the air what do you do? Well let me take a few minutes
to just talking about that and then we’re going to take a break. A good national accessibility
law should detail how these standards are made and there’s several
propositions I like to offer. Ultimately they’ve got to
be enacted by, by cabinet, by the government you can’t
take that away from them. But there’s just a few important
points I want to offer you. A practice from the US
from Ontario and elsewhere that has evolved and I think
is it done right is a good idea is that first the government should set up advisory committees that can advise on what a proposed
standard should include. Committees that can consult the public sector the private sector and people with disabilities get their input and
give their best advice. Their proposals should be made public for the government to consider and then the government
can act on their advice or bury it. Now that is a general
proposition I stand behind. And it is a common feature of the US, Americans with Disabilities Act and Ontario’s, Manitoba’s
and Nova Scotia’s law. But I take, I part company with Ontario’s law and indeed the other Canadian laws, by saying that what the
federal government should do is have the advisory process the design and operation of
these advisory committees it should be made completely arm’s length from the government. In Ontario, it’s completely
overseen by the government. Contra and contrast the US
has the National Access board that while it’s federally funded operates quite arm’s
length from the government and I think they do a far better job. What happens here is the
government in Ontario as the government tries to control it they have a, they may have a political agenda
of trying to water it down or may feel beholden to
obligated organizations more than people with disabilities and it weakens the
effectiveness of the problems, we’ve seen significant problems and how they develop
accessibility standards in Ontario as compared to the United States. So, it’s absolutely important
for it to be arm’s length the process of deciding
what standards to make and the operating of advisory,
expert advisory committees to produce the best independent advice. What government does with
that advice in the end is for the government to decide and, and face its political accountability. But I think that we get better regulations if we got better arm’s length advice. And just to give you a
couple of illustrations of the kind of problems that can occur, it will take a break. In Ontario it seems the
government is increasingly trying to cloak these
standards development process or at least the operation of it standard development committee in secrecy. I went appeared before its transportation standards development committee in Ontario a couple of months ago. Thanks to some able help
from a couple of students from Osgood doing research to assist to present some proposals. I walked in and the first thing the chair of the committee said is, this is a confidential meeting. I said, no, it isn’t. And I pointed to provisions
in the act that says that they have to keep
minutes make them public and so on and. I seem, I just thought
there’s a real disconnect here between what they’re doing
and what they should be doing. We need an open process and
an arm’s length process. To that end one core proposal of that we’ve put forward is that the federal government
should create a new agency called the National or Canada
accessibility commissioner and one of his or her important jobs should be to operate the
process of developing recommendations for
accessibility standards. And that Commissioner federally funded should report to Parliament and should be able to
operate quite independently without being subject to the, the vicissitudes of either
political interference or public servant control. I said a couple of examples I’m going to give you one more example and then we’ll take our break. In Ontario, it’s the
government that decides whether to even appoint a committee to start developing an
accessibility standard. We years ago proposed that we needed ones in the area of health care and education and it literally took years to
get the government to agree. An independent accessibility, national accessibility commissioner might well be able to make
those decisions more quickly, the government could
always propose a topic but even if the government doesn’t objective independent National
accessibility commissioner should have the power
to say, you know, what we need a new standard
in a particular area and I’m appointing a committee
to give at least advice on what it should include. With that let’s take a break and then we’ll come back to talk about what else a national accessibility
law would, would need to make this actually work effectively. Well let me actually fill
in just a little more detail about how you develop
accessibility standards before I jump into the critical topic of how the heck you enforce these things. First a question about who and then a question about how. In Ontario they appoint
individual standards development committees adhoc which is understandable to deal with areas where people are experts but they’re not arm’s
length from the government. And in fact currently government
staff sit on the committee as non-voting members. I’ve said already why it’s
really important for them to be arm’s length, in the case of the federal government just like the provincial government, governs could likely be or
will be the largest respondent that’s got to comply. It’s important that whatever
the committee proposes the government hears the
advice of dependently. This got out of control in
Ontario a couple years ago where after they agreed to
do a health care standard but before they even appointed
an advisory committee to advise on what it should include the government held what they
called a pre-consultation to decide what should be the scope of what it should include. Which is let’s have a consultation before we appoint people to give us advice and do a consultation. It’s just, a, it drag that the process, b, it smacks of a government
that’s busy trying to control every inch of the way rather than just get good advice. Again, I emphasize
whatever advice they get the government get the final say and whether to enact. But we think it will and
I certainly think that you get a better product when you get good arm’s length of advice that the government can have input into but isn’t controlling that whole process. But there’s a second
part of the (mumbling) That is unique to the situation
with all of the legislation that the federal government’s
going to be introducing. That, the federal government
as I said did excellent broad public consultation between 2016 and 2017 across the country. And before they started they issued a discussion
guide to give an idea of what they’d like to hear about which was very helpful but in one area it took a position that that I have a real difficulty with and I’m still very concerned about and there is this it proposed that the idea that in the areas that the Canadian transportation
agency now covers, the Canadian transportation
agency should still be in charge and for this the areas
that the CRTC covers broadcast, telecommunication
all that sorts of stuff, telephone, cable TV, cable services all that. Internet they too should retain authority, if anything I think what the
federal government has said, it’s considering is giving them more power in those areas. And I take a different view, I think that the national
accessibility commissioner or whichever arm’s length
body is created to, to make recommendations on the
content of access standards that body should have
authority over all the areas that the federal government can address. We shouldn’t carve out chunks of it and say it goes to the
Canadian transportation agency or CRTC. And I say that for several reasons first people with disabilities
should have one stop shopping and when it comes to developing
accessibility standards it should include one stop forgetting the changes made that we need. We shouldn’t have to
run around the country and get punted from
one agency to the next. As it is, if you file a
human rights complaint alleging discrimination
against a phone company you may find that you get punted by the Human Rights
Commission over the CRTC. Depending on how the events unfold and it’s better for it
all to be under one roof and the one roof it’s under
should be an organization that has expertise in
disability and accessibility. Now that’s not to say
you would shut the CTA or the CRCT out of the federal government was going to make a
national transportation accessibility standard. Then it’s Canada
accessibility commissioner whatever arm’s length
body it mandates to do it could certainly work together with the CTA could get
their input and so on but if the CTA resists that shouldn’t or tries to water it down. But the Canada accessibility commissioner which whoever’s got the final word on what’s going to be recommended
to the federal government that agent that arm’s length body wants to recommend more
or better or stronger it should do so. Cabinet can of course
get input from the CTA and decide who’s making the best case but the CTA should have
a final veto on it. Put another way the Canadian
transportation agency and the CRTC have already
had a mandate in these areas for years and their track
record is not sufficient. And I don’t believe their insufficiency of their accomplishments has been because they didn’t have enough power now they are maybe more powers that would let them do
more than they could do now but there’s a lot more they could do now under the powers they’ve got. And I for one don’t believe in going back to an organization with a track
record of not doing enough and just saying, let’s give you more power that you may not use to
supplement the current power that you have a defectively used and I mean, I’m excited that
in the face of it perhaps because of I don’t know the movement that many of us are involved in pushing for national
accessibility legislation that the Canadian transportation agency in the last year got religion and is trying to develop
stronger accessibility standards in transportation, that’s great, no problem, happy you’re
finally seeing the light but we can’t wait for that. There’s another reason we don’t
want to park the final word on what to propose at the CRTC or the CTA. You may in this course
on a minister of law have heard the term before (mumbling) and the term is regulatory capture. Regulatory capture is a description of a phenomenon that that exists here and in many other countries,
Western democracies we have a regulatory state. Where the regulatory body has a relationship with
the industry it regulates which is not completely arm’s length. I’m not alleging corruption
or anything nefarious but frankly whether it’s
employees who go from the regulated industry
to the regulatory agency and back through a revolving door or whether it’s because
of an ongoing day to day working relationship or whether it’s just
because the industry’s much richer than others
and therefore able to spend more time and money making it’s a case to the
staff of the regulatory agency the fact of the matter is, that I am concerned that the CTA would not have the kind of independence from the industries it regulates and the fortitude and
the same with the CRTC and that’s not to impugn any individuals or again to allege any misconduct but this is something,
I didn’t invent the idea of regulatory capture I learned about it when I was in law school
and through my career I’ve seen it in different
regulatory regimes over and over here and in the States and elsewhere. So, a concern about it I would expect that the CRTC would want
to retain all of its power to even get more in this
area and so with the CTA that’s what those kinds
of organizations do and I would expect their
industries they regulate would far rather them have this mandate then some new organization like in Canada accessibility commissioner which has a stronger core commitment to an expertise and accessibility and maybe more ability to get input from, from the disability community. So for those purposes and those reasons I think the Canada would be better off either simply giving this mandate to the national accessibility commissioner or whoever is going to have the role of arm’s length
of the advice giving on what to include in accessibility standard or if they’re going to leave any authority with the CRTC or CTA, it shouldn’t be final authority and it should be open if
the CRTC is doing nothing or not doing enough for
this new accessibility advisory agency to be
able to act on its own give its advice to Cabinet, invite government to get
input from the CRTC or CTA as the case may be but nevertheless not
enable them to lock it up. The other couple of
words I want to say about how we develop accessibility standards relates to who’s at the table. Now what we’ve done it Ontario,
what’s happened in Ontario commendably is that they
include representation from the disability sector
and from the obligated sector and that’s the way it should be, they fill the room with a
number of public servants who don’t have voting standards, I don’t mind these committees
getting input from, from the, from government
officials at an appropriate time but I really don’t like the idea that they’re populating the committee on everything except votes. Because I think it really
slants the process unfairly or could be seen to. For example the, when I appeared before the
transportation standards development committee, the
majority of people in the room were either from the transit sector or non-voting government officials and the message conveyed
was that this is a process that predominates that way and when you see the recommendations that they proposed for initial circulation ones we’ve responded to
again with the help of some fabulous Osgood students who helped with our research. They were quite one sided and not in favor of the needs
of people with disabilities but the other thing and to the credit of
the Ontario government a decade ago in the 2007 election we pointed out that
there’s a lopsided this and what the government agreed
to was that it would ensure that on any standards
development committee half of the voting members
are from the disability sector and that is I think an
important step forward it’s not the legislation
but they promised it and they acted on their promise. I think would be better if
they acted on their promise and also made sure that the
committee wasn’t at the majority that the equal number
of people in the room were people disability the
other side the obligated sector and they could bring in
government representatives when they need them but not have them there the
whole time less than that makes the situation less arm’s
length than it should be. But the other thing that we’ve learned and we’ve learned this from
a number of jurisdictions not just Ontario. But even when you have equal
representation at the table there isn’t equality of power. Because on one side the part you got transportation
standards development committee and on one side you’re going
to have people representing major public transit authorities that’s municipally funded public sector or Metrolinx in the case of Ontario which is part of the Ontario
government or whatever and on the other side
you’ll have some individuals from the disability community
maybe some staff from volunteer community
disability organizations. One side their whole way is a essentially being paid by the taxpayer and the other side is basically
volunteer charitable money. One side with access to all
sorts of research capabilities the other side not and we’ve got the provincial
government in the 2007 election to promise to provide staff support for the disability sector representatives that help though from what I’m seeing now it’s not clear they’re still doing that some situations I know they did and again it makes the situation lopsided. I’d like to see the
national accessibility law a more structured regime of
under this arm’s length body whether it’s the National
accessibility commissioner whatever we want to call them which provides the kind of
Staff and research support to the disability sector so
the playing field at the table is a level one you’ll get better advice. And so with that let me now move from the already substantial
and complicated area of how you develop accessibility standards let me move to the question
how do you enforce this thing because the next key ingredient
in this legislation is that it has to provide
for affective enforcement. And the Ontario government if
we learn from their experience there’s lots we can learn from experience. They were right when they
enacted this legislation 2005 to say enforcement is key that if people don’t believe
that there are consequences and meaningful consequences that they’re simply not going
to comply and offer the time. And that we’ve learned
this from everything from seat belt laws to all
sorts of other legislation time and again. And the Ontario government
is to be commended for promising effective enforcement but well there’s lots we can learn also for the Ontario government and what they’ve done since
then which is complete (mumbling) a significant failure
to keep their commitment that they’re enforcement
has been inadequate and to some extent could
be described as paltry relative to the levels of noncompliance of which they’re, they’re aware and which they could do much more about. So what should effective
enforcement look like well when you’re doing a,
creating a regulatory structure there’s room for a lot of creativity, there’s several pieces that we know about you can should can and should have the power to levy monetary
penalties and stiff ones. To make it make noncompliance seem not worth it. Especially when you’re
regulating giants like Air Canada or Rogers communication
and not picking on them but just as illustrations
of the federal government. You need the quantities of money that are going to send the right signal but you also need other things you need compliance orders, so if there’s noncompliance an
order can be issued that says here’s what you’ve got
to do it can specify what needs to be done
and can specify by when and can be readily measured. Either way the better the,
clear the accessibility standard the easier to enforce. The more detail and accessibility standard if it tells us you’ve got
have a counter at this height you can easily tell if
they’re in compliance take out a tape measure. In Ontario, unfortunately
they passed a regulation set for public service areas you should have an
accessible counter height but they don’t say what that is which is bad for and organizations that want to know what the heck to do and bad for enforcement
who have to figure out what they should when to enforce, bad for people with disabilities
who could be left with all sorts of inconsistence practices When it comes to enforcement the clearer the rules the
easier the enforcement and likely the more,
the easier it is to get change in what people actually do and that is after all
what we’re all about. The next key thing when
it comes to enforcement is there should be a
regime of public audits, inspections and public reporting so that organizations don’t have to wait for someone to prove noncompliance they should be motivated by a concern that if they’re inspected eradicated, it would reveal noncompliance and could lead to consequences. There and so for reporting requiring public self reporting
about what they’ve done especially has to be posted online provides for another key
tool which is the capacity for crowd sourcing enforcement. If an organization has to file
an accessibility self report has to detail what it’s done and if it’s required to be
posted online and made accessible to the public that would allow us to check things out even
if public officials aren’t. Another key ingredient for enforcement is there needs to be a complaint process and I don’t buy that mean a, formal legal complaint process like under human rights code
where you file a complaint and you proceed as an
individual complainant to a hearing an adjudication more along the lines of
what we have with the police and the criminal law. You’re aware of lawbreaking,
you reported to the police the police have limited resources they exercise their discretion which where to allocate
those scarce resources but at least their discretion can be informed by what’s reported and if there’s a serious report of a serious accessibility
problem right now that would provide an avenue for the government or the
enforcer I should say to, to deploy its accessibility
resources immediately if the public complaint is a credible one and the violation looks
like it’s a serious one and important area. But underlying all of these Underlying all of these agreed ingredients of effective enforcement is one overarching theme
which is that the enforcement must be in the charge of a
public sector organization which is arm’s length from
the federal government and to that end I am by coalition the
accessibility frontiers for disabilities act alliance we have actually proposed that, that too should be part of the
mandate of the national or Canada accessibility commissioner. now he’ll sign it somewhere else but the key thing is it
should be an organization that is arm’s length from an independent from the government. Having enforcement in the
same hands as the organization that is developing recommendations for accessibility standards is helpful because their experience with enforcement will enrich their thinking
on what to recommend for accessibility standards and their experience in
developing accessibility standards will enrich their enforcement
activity and expertise. Why should it be an arm’s length body? One principle, one practical the one in principle is that the large, as I said earlier the largest organization that’s going to have
to comply with this law is going to be the federal government and as a matter of principle the federal government should be expected credibly to enforce its
own law against itself. Its stronger interest is going to be in giving itself a break. As a practical matter I will tell you that we know in Ontario that they don’t have
independent enforcement. Enforcement is in the hands of an office called the Accessibility
Director of Ontario. It’s part of the ministry now called the Ministry of Accessibility it reports directly to a
deputy minister and a minister and we have years of experience to show that enforcement has been way too lax way too lax. And indeed we have a situation now where the same minister
is both responsible for government services compliance having the government comply with the law and the accessibility Directorate the ministry responsible
for enforcing the law and we think no matter how
committed the Minister is no matter how dedicated to
accessibility the minister is you can’t wear both of those hats and you can’t have both of
those hats reporting to you. So both from a matter of
both as a matter of principle and from years of practical experience we know that this enforcement
needs to be arm’s length and independent of the government. Well what would help
make enforcement work? We know that any
government is going to have limited enforcement resources. So I’d like to suggest
that it would be good to creatively craft
the enforcement process to get the most bang for
your in enforcement buck. And by that I mean this first having an effect
of widely publicized toll free hotline to file complaints and making public on a
monthly or quarterly basis that what the input
that’s come in that way would help provide an avenue for crowd sourced enforcement. As I said just a few minutes ago requiring obligated organizations especially government departments
and large corporations like again like via rail or one of the cable companies
or a TV station whatever to require them to annually
or periodically file not only at accessibility plan but a progress report would
enable us in the public and if they file them and make them public put them on a searchable database
that any of us can go into and look at would enable
us to look at them and say, hey, they say they’re doing X. I was just there last week, they’re not and make the enforcers job easier. There should as well in
the enforcement context so crowd sourcing helps and the more public be the
reporting for their compliance, the more likely an organization
is going to want to be sure that they’re doing the right thing and getting it right. If they compliance self report doesn’t require you to
just tick a box say yes we’re in compliance but
actually say what you’re doing. If it has to be signed by the CEO and It has to be posted online you’re going to expect that CEO to ask a lot of tough
questions of their staff before they sign it and agree to post it. To make enforcement work as well one of things that we’ve
learned from the States is you need a dedicated
public enforcement staff we’ve also learned this from Israel. In the States the US Department of Justice has a disability rights section and they have a substantial
number of lawyers who could bring targeted who could take on particular sectors not just act on complaints but decide that particular
sectors of the economy need priority action and launch proceedings and try to negotiate solutions or litigate if they can’t get settlements. Similarly in Israel, not a big country, but trying to make progress in this area they actually have more
auditors and inspectors than we have under the Disability Act for the province of Ontario they’ve got way smaller population, way less territory and from what I gather a few
other problems on their plate other the disability accessibility as compared to those of us in Ontario we have fewer people to directors or inspection officials appointed into the
Disabilities Act in Ontario to inspect larger territory more people and even though we are
more affluent society without the kind of security issues that a country in the Middle
East has to deal with. So the, the other thing I want to talk about
in terms of enforcement is as a core principle is that organization a couple of other things organizations are more likely to do the right thing if they are expecting government to come
their way and check them out and to that end it’s important however many officials government actually hires to do this it’s a big country Canada. We need to proliferate the
public face of this legislation beyond the number of
inspectors the government hires to deal with the
federally reachable sector how do you do that? Well, a proposal we’ve offered Ontario they’ve experimented with but never publicly
reported on how it worked was we propose the
government should deputize Inspector, people who are doing enforcement and inspection functions under other regulatory laws to also have a mandate to do
inspections and enforcement under the Disabilities Act. So if I can use the provincial example if the government has whatever number of appointed inspectors under the Disability Act but if they also appoint
any elevator inspector or any food inspector or any occupational health
and safety inspector just give them a checklist
of five things to look for doesn’t have to be everything but if any company knows
or any employer knows that when it’s one of those
inspectors comes in the door they’re going to have a
disability act checklist. They’re more likely to
want to break make sure that their operations are shipshape. But the other thing about and that relates to the, what I described is the public face, the
sort of face presence of the Disability Act in the expectation you need to comply but the other thing is
not just how many people are out there doing the inspecting or auditing or whatever but
what they’re inspecting. Now let me draw a contrast for you. In Israel, a small country the inspectors for the Disability Rights Commission actually go out on premises and look to see whether
the premises of a place meets the actual accessibility standard whether there are actual barriers. And if there are they either they work with
them to go come into compliance or file proceedings which the government then brings Folks with disabilities in
Israel say not enough of them and so on, but as I said they’ve got
more boots on the ground doing this in Israel that
we’ve got in Ontario. In Ontario much of the auditing process is not going out on site at all but rather asking organizations
under the Ontario law whether the obligated organization
has the paper trail on accessibility they’re supposed to. Do you have a policy? Well send us a copy. Doesn’t matter if you’re implementing it but do you have a policy? Did you train your staff on it? Send us your training records and if your records are inadequate for what we’ve been able to find out through Freedom of
Information activities again assisted by ably assisted by Osgood public interest placement students helping us out what we’re
finding out is far more often than should be the case it looks to us like the enforcement is all about making sure
your paper trail looks better and if you send better paper in they’ll tell you you’re in compliance (mumbling) all the time but it looks like it’s a significant part of what they’re doing and for us having good
paper in your filing cabinet is not what it’s all about as if people have paper and
filing cabinets anymore. What it’s all about is
actually removing barriers finding out what people are actually doing to ensure that people with disabilities can fully participate in
the workplace and so on and in the goods and services
organizations provided. So we say that the audit
and inspection process has to go far further. And must focus on what’s
actually being done to make a play successful not
just the process paper trail. Well the final thing I’m gonna
tell you about enforcement because there’s other goodies to offer you is there is a two concepts that have underpinned the
Ontario implementation that may at first seem
intuitively sensible but have been an abject failure and shouldn’t be replicated federally. The first is that the federal government should be required to bring
itself into compliance before any other sector should. And the second is that
we should first educate obligated organizations before we take enforcement. We have to first (mumbling)
all of what they’ve got to do before we take enforcement. Now know at first this
seems intuitively sensible it has been a complete utter failure. Let me tell you why. First the idea that the federal
government should go first only makes sense if you’ve got really
rapid compliance timelines what’s happening in Ontario is that they gave the provincial government like three years to comply
with an accessibility standard on customer service and then gave the private
sector another two years what happened? The private sector from what
we could see did nothing for the most part until about four years and ten or eleven months into the process and then suddenly rushed to comply in fact they compliance under
the customer service standard Ontario was so what you had to do to
comply was so minimal you only needed a couple,
you know, couple of weeks maybe couple of months if you’re big. But rather than getting everybody doing it can you imagine a law that says, private sector, you can keep polluting till the government stops. Please don’t give me any
of that water to drink Okay, I mean that just makes no sense. Barriers everybody should be
working to remove barriers it may be that, that some organizations have more capacity to do it and therefore we expect
them to move more quickly but we shouldn’t let
organizations in any sector stall and delay for years because first we’ve got to
wait for government to do it not only that but there are some areas where the private sector is better able to move more quickly in fact the usual expectation in Ontario that we’ve seen from the government is
first the government then a large business then finally small
business get the most time. Now sometimes that makes sense and of course the expectations of smaller business can be less but I’m going to give you an example a really important example where small business can
actually move way more quickly and should have shorter time lines. What is that? Website accessibility. Principally in the area
website accessibility we’re talking about
making content accessible predominately in a go forward basis. So making sure your new content try to, try to fix up
your overall web presence but then just principally
devote your efforts to what you’re posting that’s new. Well, if you’re a small organization with just a few employees your website might be fixed in hours maybe a few days on contrast the government of
Ontario is a huge organization with a massive web presence. Now telling that smaller business you don’t have to do anything
until the Ontario government fixes their monstrous web presence I mean it’s counterproductive it’s really wrong but that’s how we’ve worked, don’t recommend it. Well let me jump from
enforcement to other areas where the federal government
can make a huge difference if the Disabilities Act
is designed properly. The next major area I
want to talk to you about is the magic topic government money and the proposition I
want to put before you is one of principle that turns into one of very powerful practice if it’s done right. The principle is this not
one dime of government money should ever be used to create new barriers or perpetuate existing ones
against people with disabilities how do you turn that into practice? You look at every opportunity that the federal government
has where and spends money and you attach strings to it. You want federal money
where you’ve got to show that you will not be creating barriers or perpetuating existing ones when you get that money. Attaching accessibility strings is a powerful avenue for change for two reasons one the cover been spends a ton, ton of money and others want it. They don’t have enough money to give everyone who wants it whether it’s in the various avenues I’m going to describe. There are competitors to get that money so government is in the
position to call the tune. And the second reason is doing this doesn’t cost the money government anything other than its implementation
and enforcement costs The advantage of this is this will put pressure on
the public and private sectors to create more and more accessibility. Not through and for through through the traditional regulatory tools but simply by the
motivation of wanting to get or keep access to government money. So what kind of government
money are we talking about? Let me give you some examples Number one, capital and
infrastructure money. The federal government like the provincial government spends oodles not only on its own
federal infrastructure, federal offices and so on, but on Grants to municipalities and provinces. And public transit authorities to build public transit,
university buildings, hospitals and so on. Attaching strong accessibility strings You want our money? Your hospital wherever it is in Canada is going to have to meet the standards that we the federal government set. It won’t cost the government
any money you know what I mean our standards will give it to somebody who will. Second, the federal government spends oodles of money on
procuring goods and services for federal programs either
by used by the government or by the public. If the government, the government should attach strong accessibility strings that provides that we will
buy your goods and services or use your facilities only if you meet our
accessibility requirements or will remediate them to meet our accessibility requirements. An example, just one example the federal government is going to hold a conference is going to fund a conference it it should be in a location
a hotel or conference venue that meet federal
accessibility requirements I’ve had the privilege of
speaking it a number of them that don’t and to me that just seems ridiculous but it wouldn’t cost the
federal government anything to say you know what we’re
we’ve got to rent a hotel we’re just going to go
to one down the street that’s better on accessibility
and if they get the word out and they get the word out loud and clear the hotel sector and
the hospitality sector is sure going to want to clean up its act because the federal government is one heck of a good customer. Won’t cost the federal government anything and yet it will spawn more
accessibility to private sector. Let me give you just
another two other examples. The federal government
gives out a lot of money in research grants, in business development grants and loans it could attach accessibility
strings to those you want to grant to help
develop your business for in a sub sector of the economy you’ve got to ensure you’ve
got an accessible workplace and that the products
of goods and services you’re going to sell are
themselves accessible otherwise we’ll give our money
to an applicant who will. The other example is
federal transfer payments the federal government
transfers lots of money to its transfer partners healthcare being one stellar example attaching accessibility strings to that they’ve attached other strings in fact look at the Canada Health Act. It calls for the accessibility of universal accessibility of health care but they don’t use the
word accessibility there the way we use it in
the disability context. But why the heck don’t they? We’ve learned from the US that stronger action in the area of rate attaching strings to federal money can make a real difference and I would go further
than just federal money I would go to money from
federally regulated organizations where possible that could
make a huge difference and finally to make this work there are ways to make this way more effective and efficient. If you just did what I just
said it would be great, but it would require
ministry after ministry and company after company
within the federal sphere and recipients of federal money to again and again have to
reinvent the accessibility wheel to figure out what they have to do. What’s the solution? Two things I’ve already talked about. Number one, accessibility standards and number two monitoring,
auditing and enforcement. Accessibility standards
could provide details on what accessibility we expect in the goods or services we procure or in the hospital you’re going to build or university building
or whatever it may be so obligated organizations know what they’re getting themselves into. Federal government knows
what they’re demanding. Auditing and inspecting for this will motivate recipients of federal money to make sure they live
up to the commitments that are expected of them. If you just attach the strings but you don’t pull on that string by
auditing or monitoring and imposing effective
consequences for noncompliance then this will all be window
dressing too much of the time The advantage of what I’m
talking about is manifest if a large enough organization
like the federal government or a cluster of organizations
like the airlines and you know the phone
companies and cable companies collectively were demanding
accessible products the private sector that
makes those products once their business in is going to produce more accessible products. And as a result of that we win all around those industries or vendors make more money with more sales we people with disabilities have access to a broader range of products and governments and federally
regulated industries get the benefit of being able to provide more effectively for their employees and customers with disabilities. It’s a total win-win nobody loses. So that the, that the entire, but but just what we’ve learned in Ontario (mumbling) when wrote in a letter to me as chair of my privileged coalition in the last provincial
election that the government will not use provincial money (mumbling) fantastic commitment problem
no overall scheme for ensuring it takes place no
monitoring that we’ve seen and we found significant violations of it. If you want to go to the YouTube search on the name of
the Lapovski and Ryerson and you’ll see a video of
a new building just opened a couple years ago Ryerson University with provincial money the writers The Ryerson Student Learning Center with significant accessibility problems significant accessibility problems. That’s not unique to Ontario. So the tool or the lever of federal money has enormous potential but it must be affectively deployed not just with broad commitments but with real concrete action. So what else can you use? Already have given enough to fill a national
accessibility law no problem but believe it or not there is still more. Let me turn to a another general area and that is what I would call pulling all the levers of federal power. We need the National
accessibility law to require the federal government
to put its find locate and put its hands on all
the levers of federal power that can help advance
the accessibility agenda and this is all to be
done in a sensible way. we know they’ve got a
million other things to do so the idea is look for levers of power that you can pull affectively with results and without needing to Run up the deficit in some crazy way in order to achieve it. Several suggestions for the reasons I outlined earlier We need a minister in the cabinet who is leads the
implementation of this law and a regulatory side and we need a minister who
is ultimately responsible for ensuring the
government’s in compliance the federal government and large government
organization should be required for reasons I described earlier. In case of large organizations, to have a chief accessibility officer a proposal that we put to the province, the province of Ontario to
its credit in each ministry has what they call an accessibility lead. To help the ministry comply the problem is their bait buried way too far within the organization to have an impact. They should be elevated up to report to a deputy minister same employee but just more clout and requisite expertise we would hope. The federal government should
have other requirements that are distinctive to it. It’s the largest organization by far. It should be required to
propagate a multi-year plan on how it’s going to get us from here to the deadline of
(mumbling) accessibility and it should be required
to make that plan public and then to annually report on progress and declare whether we’re in a few. We’re on schedule or behind schedule what we’ve done in Ontario was to their credit is
to have multi-year plans but not to their credit, they’re just multi-year plans like a five year plan on how much, how far we’re going to get in five years with ever look without
requiring them to look at the ultimate deadline of 2025 and say is your plan going
to get you on schedule keep you on schedule
for achieving that goal for full accessibility A few other things that we’ve learned from the Ontario experience,
both good and bad the process of developing
and amending legislation is a unique kind of process and in the process of
developing legislation the same problem I illustrated
at the start of this lecture has to often pervaded. Laws tend to be written as if they are for the
so-called average person who is a person who has no disability. Obviously, we have
specialty laws that focus on special education or
paratransit or whatever but there are the exceptions generally, laws are
written on the assumption that the people to whom they
apply have no disability which is kind of makes no sense because everybody either has a disability or gets one later. So how do you fix this? Well, the old fashioned way is, Oh, let’s just do charter litigation against every statute out there. Well, people with
disability can’t afford it and for government that’s kind of like the least productive way to spend their time, of
course, we have to have resort to charter a litigation but what we need is all
laws to be reviewed. To see if they meet accessibility needs whether or not just
whether they on their face select people with disabilities
for worse treatment but further looking at
the laws and the programs they authorize are required. To see whether the legislation effectively ensures that people with disabilities can
fully participate in them. I coauthored an article some years ago that which I’ll link to this lecture. Or at least the name to which
I’ll link to this lecture. Which explains how you develop or review legislation based on principles of universal design for ensuring accessibility
for people with disabilities. Well, governments don’t do this right now as well then when you need
the federal government to do Review all prevent federal legislation and regulations over a
period of time the statute should set a deadline for doing it and then bring
forward an omnibus bill to fix the legislation where needed. That’s been the Ontario experience commendably 11 years ago
the premier of Ontario Dalton McGuinty promised such a review not so commendably 11 years later they’ve only reviewed
51 or 55 of 750 statutes and the amendments they made missed many, many important barriers and there’s no end in sight. We need a legislative deadline that will bring this legislative review into clearer compliance. This will save everybody trouble it will avoid the need
to do charter litigation and make for more effective laws. The next need that I’d
like to highlight are next lever of power that I’d like to suggest is available and important is an immediate review of the accessibility
of the election process at the federal sphere. Right now voters with disabilities
face too many barriers when they try to exercise
their democratic franchise during a federal election. We still face too many of the provincial and municipal levels but I could give you the town a Cobourg as an example. If you are blind as am I and you can’t mark a print ballot. Your choices are either
at the municipal level telephone or Internet voting
the most independent way for you to vote provincially there is one accessible
polling, voting machine in every writing and you can only use it to elect voting day but not on voting day and you’ve got to schlep across the riding to the one place where that will be in your writing and federally we have neither of those. Federally we mark a federal ballot there’s been some efforts to
address the federal ballot but none that enable me to mark my ballot in private independently and verify my choice without
requiring any cited assistance that’s just one illustration
of the kind of barriers we need to fix in a voter
is a voter is a voter whether they’re in a
municipal or provincial or federal election there really is no reason for them to face different barriers at different levels. The final lever of federal power I want to draw on just
now as an illustration is the power of Canada’s activity in the area of international trade government after government regardless of the political stripe devotes federal resources to
promoting Canadian products in Canadian services on
the international stage government delegations
that go off to one country or another touring around bringing a plane full of business folks to promote Canadian wares abroad. Nothing against doing that but guess what folks, how many customers are there around the
world with disabilities? The answer is upwards of one billion and yet we do not have to my knowledge any federal government strategy to ensure that our
international trade activities. Try to get our Canadian private sector to meet that incredible demand. The demand for accessible
goods and services around the world is growing especially because some
any number of countries of the past accessibility laws and more are considering doing so. So the country that decides that they want to grab the
market for exhaustible goods and services to serve a
billion people around the world is going to have a huge advantage and national accessibility law should grab that lever of power too and provide that whatever
the government is going to do to promote Canadian trade around the world Canadian products around the
world should include this as a core component. This should be a money maker for Canada and indeed it ought to be a money maker for the federal government
if they do it effectively in terms of generating a new tax revenues. Let me spend our last few minutes together just offering you a few hundred
sundry a practical things that would make a national
accessibility law work. I’ve been talking a lot about
legal tools and standards and enforcement and all that stuff and they’re really important, but for an obligated organization whether it’s the federal government or some recipient of federal money or a federally regulated company. They also need help and they’re going to want to know just not only what’s what they have to do but they want to help in how to do it and there are several things that the federal government
can do at low cost and make a huge difference. Before I mention them I want to reiterate that well written strong in effect of accessibility standards can themselves be a really good help because if they tell an
obligated organization CEO or Key officials what they’ve got to do without
them having to hire lawyers and accessibility consultants
to know what they have to do. They’re more likely to do it it’s going to make it
easier for them to do it. It’s going to make it lower
cost for them to do it and they’re therefore going to find them to
be a help in doing it but that’s not all that’s before we even turn to
more proactive tools for help. One thing we’ve learned
from the United States is that providing reliable
arm’s length advice for free to obligated organizations can really help and the US has done this
by establishing a network of technical advisory
offices around the country cleverly they’re not part
of the Department of Justice or whatever so that if
a company calls them up for technical advice they don’t have to worry that
your call is being recorded for quality assurance and the recording is going to be used in evidence against you in a non compliance proceeding. I wouldn’t blame any company for not wanting a call for advice if they worried that what they would ask I could get used against them moreover the US has established an excellent service called
the job accommodation network or JAN which provides advice both
to employers and employees again it’s over the
phone or whatever advice and therefore companies still have to do what they’re supposed to do but they pick up a phone, place a call get some good
advice on what needs to be done or on some helpful solutions and it solves a problem think of the enforcement cost we’ve saved think of the think of the
capacity to increase compliance so that can help. I also I mean this could be easily
supplemented by online resources. My worry about government online resources is not that they can’t be helpful but because in the modern
day of government at least from the third of a century work there there’s been increases kind of
nervous Nelly thing going on about worrying about putting anything out that, that is that might. Lead someone to be upset
about why are you asking us to do that now that’s
not to say governments don’t put to use for resources or can’t but there is a, a reluctance I will tell you that
in 2011 Ontario passed its first package of comprehensive
accessibility standards in the areas of transportation, employment and Information Communications and it took them about 11,
I think 12 or 13 months before they even put any
online help out at all and the work had been done much earlier. But just the bureaucratic process of getting things online
and approved or whatever anyway, it’s, we need something that
breaks that (mumbling) you can’t just rely on, on that. I’ve talked up till now
about the federal sphere and it would seem at first
that the federal government shouldn’t go any further. But in fact I believe it should and there are significant ways
that the federal government can influence accessibility
within provincial jurisdiction without violating provincial jurisdiction. Let me tell you first why we should care and then second how to do it. Why we should care is this Canada’s Constitution devolves
responsibility for many probably most of the
barriers facing people with disabilities to provincial
and not federal jurisdiction so if we left it to the provinces to solve this problem we would mostly end up
with an inadequate solution because it would require
all provinces to pass and their own provincial
accessibility laws so far in the past 13
years only three have (mumbling) but only three have. And secondly, it and the second problem is it burdens smaller provinces
like Prince Edward Island or New Finland with the
burden of trying to replicate a lot of the heavy lifting
work that a more populated and resourced province like
Ontario can more readily deploy from the point of view of
people with disabilities we’d like to go anywhere in the country and know we’re going to
get basic accessibility from the point of view of
obligated organizations they’d like to know that if
there is one standard they meet somewhere in the country that they don’t have to worry about learning nine
other standards elsewhere in the country. So there’s a strong interest
on the part of everybody to have a more national presence even in the areas that the
provinces are responsible for. Normally when you say
something like I just said provincial rights buffs are
all going to get all worried about isn’t this going to
invade provincial jurisdiction. No there’s a couple ways to do it that doesn’t invade their
jurisdiction at all. Here they are. First they did that would be really
helpful if the national body that is responsible for creating national accessibility standards in the federal sphere should also have a mandate to create model accessibility standards for the provincial sphere. These would of course not be mandatory if they passed a national
accessibility standard on health care it would not be binding in those aspects of the health care system which are exclusively the
responsibility of the provinces. However, if the federal government passed a national accessibility
standard on health care it would be open to provinces to opt into it if they wished. So if PEI decided we don’t wanna create all standards development
process that Ontario has but the feds have created a good one let’s just take it off the shelf and adopt it and enact it we could get actually PEI because PEI decided it
wanted to take that action. The advantage of a national
model standard as well is that if you’re a business
carrying on business across the province, across the country you may well aim to comply with
that national model standard even if you’re doing
business in provincial areas of regulatory jurisdiction if the, if you were to know that complying with the federal standard ensures that you fulfill the requirements under provincial access law the accessibility from
terms of Disabilities Act and provincial human rights codes for them it would be
affective one stop shopping so model national accessibility standards are a given a win-win situation province doesn’t like them doesn’t have to adopt it but if they like it they can
adopt it or they can add to it we have an example to draw on. The federal government has
a national building code it does not govern buildings that are in provincial jurisdiction but provinces use it often as a basis for their own building codes and drawing on that example second suggestion, I proposed just a few minutes ago that the federal government
developed helpful resources like technical assistance call in lines or a job accommodation network. It would be worthwhile
at the federal government invite provincial
governments to opt into it and use it within provincial jurisdiction. So your company can call in for advice whether you’re federally
regulated or provincially. My third suggestion is one I’ve actually
already covered with you a few minutes ago I talked
to you about attaching strings accessibility strings when the federal
government gives out money. Well again, a significant
chunk of the money the federal government gives out is to projects that are
within provincial jurisdiction some university buildings,
public transit, hospitals and so on. If the federal government
attaches accessibility strings to those they’re helping tear down or prevent barriers in the provincial area without violating provincial
constitutional jurisdiction because it’s hallways open to the provincial folks who
want to build a hospital to say sorry we don’t
want to be your strings we’re not going to take
your federal money. So just by those examples I’ve shown ways that
the federal government could have a significant impact and what I’m hoping
those kind of activities by the federal government will do was help lead the other seven provinces that don’t have now a
provincial accessibility law to decide that it makes
sense to harmonize it all and to have one as well. Let me talk just for a moment about a couple of closing things and I’m going to wrap up. It is really important for
another ingredient of this law to be to include important measures to ensure accountability for those who implement this law. Because it’s important to give a roadmap (mumbling) but there’s a number of key players who have got to be accountable because they’re overseeing
how the whole system works. Let me offer you just a few ideas. First, the national
accessibility commissioner I’ve talked about Canada
accessibility commissioner or whatever they want to call it. I’ve already suggested
it should have two jobs developing recommendations
for access standards and enforcement. Let me suggest a third it should also be our national conscience, our national watchdog, our national champion that speaks out on these issues and lets us know where
we need to do better. Second what we’ve learned in Ontario very, very well is that it’s very helpful if
an accessibility law like this puts in place a requirement
to independently take our temperature every once in awhile. The Ontario’s accessibility
law, the accessibility frontier for Disability Act It requires an Ontario government after the first four years under the Act and then every three years after to appoint an independent person to conduct consultations and then report to the government on how effectively the law is working. In effect, are we on schedule for reaching full accessibility by 2025 and if it’s falling short
to make recommendations. we’ve had two of these
independent reviews one in 2010 one in 2014 and the next one needs to be appointed as of the day I’m speaking to you within the next three
weeks as a matter of law. These have been really important. They point out where we’re doing well but they also a point where
significant changes made they don’t guarantee
that change will be made but for those of us who’ve
been involved in the advocacy advocacy in this area they’ve been an important way not only to hold the government accountable but to find where there’s
actually consensus on the subject as between people with disabilities and obligated organizations. They’ve found often that the same message coming from both sides. Asking the government to do
more in one area or another. And finally in terms of accountability there needs to be mechanisms in the law in place in circumstance where the government is just not doing something
it’s supposed to do. We shouldn’t have to
resort to legal proceedings like mandamus there fraught
with current legal complications and cost a lot. In the year 2014, the
government was obliged to appoint the independent
review by May 31, 2014 excuse me, 2013, I misspoke required to appoint them by May 31, 2013. The Ontario government didn’t do so it broke its own law and it took one hundred days or more till it appointed that
independent reviewer eventually appointed Mayor Moran (mumbling) a great choice but about three months were lost and it’s completely inexcusable there should be a summary process would it important process,
clear obligation is there on the government in
its role as leading us to full accessibility to be held accountable (mumbling) The final area that I want to talk about before we close is the area of initial steps. Everything I’ve talked about
of a federal government listen to everything I
said is that all good ideas let’s do it. The day they enact it now that’s going to change not because anybody’s bad, but setting up this new regime is going to take some time. Of course, it will. And once it’s set up
getting recommendations for access standards is
going to take some time and then enacting them is
going to take some time. and then we face the
prospect that we’ll be told Oh, you have to wait for people to get properly educated on them before we can take enforcement. Earlier I said that
proposition doesn’t work it doesn’t work because if you do or it isn’t necessary because
if you do an effective job of developing access standards and the obligated sectors know what’s coming well before it’s enacted. And if you do have a well
designed enforcement process the first step of enforcement is visiting or contacting the organization and saying here’s what you got to do and get on it. If they say no you give a compliance order and timelines that’s education. You don’t need to have
seven hours before you, you get there especially
for large organizations like the federal government and large federally regulated companies who are well positioned to know
what they’re supposed to do. So what do, but we do
need something in place to get things changing on the ground for people disabilities right away or quickly while all these
new regulatory machine all this new regulatory
machinery is created. What do we do? Simple. Start immediately to attach
strings to federal money. Starting the day after the law passes tell those who want to receive
federal money for grants or loans or infrastructure payments or sell goods or services that this is the new way
we’re doing business. The moment they actually say
that things will start changing whether they give people a grace period understandable if they would never the less things will start changing and you don’t need a new regulatory regime to get that changed to start. Let me conclude where I began. 36 years ago Prime Minister Pierre Trudeau embarked us on an amazing journey when he led when he spirited the creation
of the Charter of Rights and when he accepted our proposal of that that Charter of Rights
should guarantee quality to people with disabilities. We think that today, 36 years later and with all the experience since then his son Justin Trudeau is
similarly uniquely positioned to make that dream a reality to draw on the experience of countries in many parts of the world who are now ahead of us. And to catapult us ahead of all
other countries in the world by putting us in the play position to put in a regulatory regime that will take us from being behind to leading all others on the
road to full accessibility thank you very much I welcome the chance to take questions. (applauding)

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