When contemplating disability accommodations in legal proceedings, a lawyer might think instinctively about the rights of accused persons in criminal trials, or perhaps the common TV image of a lawyer in a wheelchair addressing an attentive jury.
Yet removal of disability barriers in courts and tribunals can benefit many people who have disabilities, including victims of crime, witnesses, litigants, the accused, jurors, or jurists.
Those in Canada and globally who foster change target barriers faced by persons with any disability, in every legal process.
The understanding that societal barriers actually create “disabilities” for individuals with physical, mental, intellectual, or sensory impairments permeates the Convention on the Rights of Persons with Disabilities, adopted in 2006 by the United Nations General Assembly. By January 2010, 77 states had ratified the treaty.
Canada signed it in 2007 and may soon ratify. In anticipation, we consider here how the convention links conceptually to developments in Canada’s justice and human rights systems — in particular to accessibility of courts and tribunals.
Many convention provisions, including Art. 24 on education and Art. 27 on employment, provide practice-oriented detail. There is less detail, but no less resolve, in provisions related to access to justice.
The convention’s general principles and obligations offer theoretical and legal support for accommodating disabilities in courts and other parts of the justice system. The convention also confirms the equal right of persons with disabilities to the many legal rights covered by the International Covenant on Civil and Political Rights and other treaties.
Many who oversee our courts, human rights commissions, and tribunals have not waited for the conventions to be ratified or for the courts to confirm a duty to accommodate, before adopting measures to bolster accessibility for people with disabilities in courthouses and administrative proceedings.
Overall, however, Canada has not attained the level stipulated in Art. 13 of the convention on access to justice:
“1. States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through . . . procedural . . . accommodations . . . to facilitate their effective role as . . . participants, including as witnesses, in all legal proceedings . . .
“2. [To help] . . . ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in . . . administration of justice. . . .”
Art. 21, which covers communication issues pertinent inter alia to justice, states that parties must:
“a. [Provide public] information . . . to persons with disabilities in accessible formats and technologies appropriate to different kinds of disabilities in a timely manner and without additional cost;
b. . . . [Facilitate] the use of sign languages, Braille . . . and all other accessible means . . . of communication of their choice by persons with disabilities in official interactions. . . .”
Another notable guarantee is in Art. 14 on liberty and security of the person:
“2. States Parties shall ensure that . . . persons with disabilities . . . deprived of their liberty through any process . . . shall be treated in compliance with the objectives and principles of this Convention, including by provision of reasonable accommodation.”
Within Canada, Ontario is a leader in promoting accommodation in courthouses and administrative proceedings for individuals with disabilities. There is a provincewide focus, including building modifications and relevant staff training.
Much recent activity stems from the Accessibility for Ontarians with Disabilities Act, 2005 and the 2006 report of the “courts’ disabilities committee.”
The report includes the following recommendations:
• Designate specific court service officials responsible for responding to accommodation and accessibility needs of persons with disabilities in the court system within each courthouse.
• Establish specific procedures to plan barrier-free built environments in court facilities, and to meet recurring accessibility needs in court.
• Provide education for judges, lawyers, and court service officials on disability accessibility and accommodation.
• Effectively inform the public of the availability of accessibility and accommodation services.
Reach Canada, a non-governmental group acting on the committee’s suggestions, is also working with the authors of this article on some issues. Judges and justice sector colleagues certainly continue to discuss ways to enhance access in Ontario’s courts, through the committee on accessibility to the justice system of persons with disabilities.
A need for disability accommodations in courts for people who are deaf was acknowledged in 1982 by s. 14 of the Charter of Rights and Freedoms. The Criminal Code now also allows “testimonial aids” for victims and other witnesses with various disabilities.
For accused persons with mental illness, New Brunswick, Ontario, and others have established (not uncontroversial) mental health courts focused on treatment and rehabilitation rather than on punishment when criminal behaviour is connected to mental disorders.
On a broader scale, changes made under Ontario’s disability act are philosophically similar to those underpinning the UN Convention.
In the justice sphere, the act’s implications go far beyond the courtroom. Both the act and the 2006 committee’s recommendations on courts evince awareness of the wide diversity of disabilities. Those who contributed to the act and the recommendations were clearly aware that a comprehensive approach is needed to remove barriers and to ensure that appropriate accommodations are offered when needed.
Ontario is the first Canadian jurisdiction to introduce enforceable accessibility standards. The act uses the Ontario Human Rights Code definition of “disability,” which includes physical, mental health, developmental, and learning disabilities. Both the act and Ontario courts’ efforts recognize that barriers to full participation can be physical, sensory, informational, attitudinal, or based on inadequate communication.
Ontario appointed standards development committees to draft accessibility standards in five sectors, including three important for judicial and administrative proceedings: customer service; information and communications; and built environment.
The committees include representatives from disability communities, business, and government. Organizations not complying with the act’s standards can be ordered to take an action to comply, or face financial penalties.
The accessibility standards for customer service, which are highly relevant for courthouses and tribunals operated by the province, came into force in 2008. Designated public sector organizations were mandated to comply with these standards by Jan. 1, 2010 and to file initial reports by March 31, 2010.
Allied with the act’s objectives, the courts’ disabilities committee made many accommodation recommendations in 2006; some are traceable to long-standing suggestions from the ARCH disability law clinic.
Implementing these suggestions by court officials and administrative tribunals would make the justice sector more compliant with both the act and the UN Convention.
Here are examples from the committee’s report:
Oral communications: “[C]ommunication supports should include not only the courtroom and court offices, but also any communications needed for participation in a court proceeding . . . e.g. communication with victim/witness support persons, probation officials, legal aid officials, duty counsel . . . discussion in the jury room.
“[P]lan . . . to equip existing, renovated and new courtrooms for persons with hearing impairments by: . . . installing appropriate amplification technology . . . for mainstream use; installing adaptive equipment for persons who are hard of hearing.”
Print communications: “Court publications available to the public, such as pamphlets and brochures, should be made available . . . without unreasonable delay on request in alternative format such as Braille, large print, accessible electronic format, or audio recording at no cost. . . .”
Vulnerable parties/witnesses: “Victim/witness programmes . . . should develop . . . expertise in providing support to court participants with disabilities who require specialized supports, including court participants with mental health disabilities, developmental disabilities, and acquired brain injuries.”
Other accessibility measures: “[N]ew elevators installed in court facilities should be equipped with voice output to assist court participants with vision impairments.
“Courtrooms should be equipped with working electrical outlets near counsel tables to enable counsel with vision impairments who require adaptive technology to access that technology.”
Ontario may inspire other jurisdictions to do more to remove non-financial barriers to justice for persons with disabilities.
Moreover, Canada’s ratification of the convention would strengthen arguments for accessibility surrounding court and tribunal proceedings and would reinforce calls for better accommodation in education, employment, and other domains.
In this regard, parties to the convention must guarantee independent national compliance monitoring, which would almost certainly involve the Canadian Human Rights Commission, as well as NGOs such as the Council of Canadians with Disabilities.
The government tabled the convention in the Commons last December. In disability circles there was some expectation the government planned to showcase its ratification during the February 2010 Paralympic Games, and it would appear that despite the prorogation of Parliament, ratification is imminent.
Lucie Lamarche is the Gordon F. Henderson Research Chair in Human Rights and director of research of the Human Rights Research and Education Centre at the University of Ottawa. This article was contributed by visiting fellow Allan McChesney, with assistance from Sonya Nigam, the centre’s executive director. The Law Foundation of Ontario awarded McChesney a community leadership in justice fellowship for 2009-10.