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					A LEGAL RESOURCE CENTRE FOR PERSONS WITH DISABILITIES
425 Bloor Street East, Suite 110     (416) 482-8255 (Main)   1 (866) 482-ARCH (2724) (Toll Free)
Toronto, Ontario M4W 3R5             (416) 482-1254 (TTY)    1 (866) 482-ARCT (2728) (Toll Free)
www.archlegalclinic.ca               (416) 482-2981 (FAX)    1 (866) 881-ARCF (2723) (Toll Free)




Committee on Accessibility to the Justice System of Persons with Disabilities
Attention: Ms. Charlene Attardo
Osgoode Hall
130 Queen Street West
Toronto, Ontario
M5H 2N5

disabilitybarriers@jus.gov.on.ca

                                                                      31 August 2005

By e-mail and regular mail


Dear Ms. Attardo:

Re: Accessibility to the Justice System of Persons with Disabilities

ARCH is a specialty legal aid clinic that is dedicated to defending and advancing
the equality rights of persons with disabilities. ARCH thanks the Committee on
Accessibility to the Justice System of Persons with Disabilities (“Committee”) for
the opportunity to make this submission, identifying barriers or obstacles that
impede people with physical, psychological, intellectual or sensory impairments
from fully participating in Ontario‟s justice system, whether as a litigant, lawyer,
judge, juror, witness, court staff or member of the public. As requested, we have
suggested how these barriers and obstacles can be removed, and how
accommodations can be made to make the justice system accessible to persons
with disabilities.

About this submission
Our submission is based not only on the observations and knowledge of ARCH
staff, but also on examples of barriers, obstacles and needs for accommodation
that were brought to our attention through the telephone summary advice and
referral service that we provide to Ontarians with disabilities. We also requested
and received input from members of the disability community and from
colleagues in Legal Aid Ontario clinics. In addition, ARCH has previously
commented on accessibility of the justice system, including making a submission
to the Task Force on Courthouse Facilities of the Law Society of Upper Canada




                                          1
(“Task Force submission”)1. From time to time ARCH lawyers give presentations
on this topic, most recently to adjudicators at the Ontario Rental Housing Tribunal
and to discipline counsel at the Law Society of Upper Canada.

Some of the examples of which we are aware pertain to specific courthouses and
situations. Unless the relevant information is available in a published decision or
article, or we have been given permission to mention a specific example, we
report the examples in a generic form. This is both to avoid breach of
confidentiality, and because similar barriers and obstacles may be found
elsewhere in the justice system. For the latter reason we also have included
examples of barriers and obstacles that exist in the tribunal system and the
federal justice system when they provide insight on how to improve accessibility
to the Ontario justice system.

General principles

Legal principles

The Ontario Human Rights Code (“Code”) applies to provincial government
services and facilities.2 Section 1 of the Code provides that “[e]very person has
a right to equal treatment with respect to services, goods and facilities, without
discrimination because of...disability.”3

Section 17 of the Code sets a high standard for accommodation of persons with
disabilities:

         (1) A right of a person under this Act is not infringed for the reason
         only that the person is incapable of performing or fulfilling the
         essential duties or requirements attending the exercise of the right
         because of disability.4

         (2) The Commission, the Tribunal or a court shall not find a person
         incapable unless it is satisfied that the needs of the person cannot
         be accommodated without undue hardship on the person
         responsible for accommodating those needs, considering the cost,

1
  “Submission re: Law Society Task Force on Courthouse Facilities” (“Task
Force submission”), 20 September 2000. A copy of the Task Force submission
is attached as an appendix.
2
  See Ontario Human Rights Commission, “Guide to the Human Rights Code”
(26 May 1999) at 3.
3
 R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c.
5, s. 32 (1).
4
    R.S.O. 1990, c. H.19, s. 17 (1); 2001, c. 32, s. 27 (5).


                                            2
          outside sources of funding, if any, and health and safety
          requirements, if any.5

The right to equal treatment and duty to accommodate in the context of disability
also arise from subsection 15(1) of the Canadian Charter of Human Rights
(“Charter”)6 which states that “[e]very individual is equal before and under the law
and has the right to the equal protection and equal benefit of the law without
discrimination and, in particular, without discrimination based on...mental or
physical disability.” If government statutes or practices are found to contravene
the equality obligations of section 15 of the Charter, courts will examine whether
or not the government has demonstrated that it has undertaken reasonable
accommodation.

The Accessibility for Ontarians with Disabilities Act, 2005 (AODA) 7 will lead to
the identification and removal of barriers faced by persons with disabilities, in the
public and private sector life of the Province. This law binds the Crown 8. ARCH
is encouraged that this Committee is not waiting for standards to be developed
and regulations passed under the AODA before seeking advice on how to make
the justice system more accessible.

Accommodation principles

“The essence of accommodating people with disabilities is individualization.” 9
Each person with a disability is an individual with particular abilities and
functional limitations.    Because abilities and functional limitations are
individualized, so too must be approaches to accommodation; there is no single
formula. In each case, there will be a different approach that is appropriate for
each individual‟s accommodation.

Recently (in the context of the Charter), the Supreme Court of Canada made
reference to the “virtually infinite variety” of disabilities and confirmed the need to
take an individualized approach to the accommodation of persons with
disabilities:

5
 R.S.O. 1990, c. H.19, s. 17 (2); 1994, c. 27, s. 65 (2); 2002, c. 18, Sched.
C, s. 3 (1).
6
 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 15 (1).
7
    S.O. 2005, c. 11.
8
    Ibid., s. 5.
9
  Ontario Human Rights Commission, “Policy and Guidelines on Disability and
the Duty to Accommodate” (23 November 2000) at 13.


                                          3
      The question, in each case, will not be whether the state has
      excluded all disabled persons or failed to their needs in some
      general sense, but rather whether it has been sufficiently
      responsive to the needs and circumstances of each person with a
      disability.10

Another principle of accommodation is that it must be provided in a manner that
is most consistent with the dignity interest of the person being accommodated.

Persons with disabilities know the types of accommodations that they require.
This consultation, therefore, is an excellent first step in asking them about their
needs.

Removing barriers within the built environment

Courthouses that are decades old remain in use. These courthouses may lack
types of accommodation that were not required when they were constructed,
such as entrance ramps, accessible public corridors, elevators, washrooms that
are accessible to persons using assistive devices, and appropriate signage.
Other forms of accommodation, such as electric door opening devices, FM
systems and induction loops, may not have been available at the time of
construction of the courthouse.

For example, the “old” Elgin County courthouse, a historic building, houses the
Superior Court, Small Claims Court and the courtrooms used by jury trials. All of
the courtrooms are on the second floor, which can be reached only by stairs.
Despite efforts by the court staff, no satisfactory way has been found to make
these courtrooms accessible.

The Elgin County provincial courthouse also has all of its courtrooms on the
second floor. The side of the building that houses the courts has stairs, but no
elevator, to the second floor, where the courtrooms are located. Persons with
mobility impairments who need to reach the provincial courtrooms must make
arrangements with police services, which shares the building and has an elevator
within its area. Access then involves going through the back area of the police
services section, past detention cells and through one of the courtrooms, before
reaching the second floor corridor on the courthouse side.

Lawyers who raise the issue of the accessibility of the Elgin County courthouses
have been advised that their cases can be transferred to the London courts.
However, even assuming that all parties are willing and able to travel significant
distances, there is no accessible transportation between the counties.
10
  Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers'
Compensation Board) v. Laseur, 2003 SCC 54 at para. 81.


                                        4
The courthouse at 311 Jarvis in Toronto has been retrofitted with an elevator but
in order to reach the elevator a person must either climb a small set of stairs, or
press a button to request that a ramp be placed over the stairs. This is not a
satisfactory accommodation. In addition, one courtroom reportedly remains
inaccessible to persons with mobility impairments.

Another older courthouse has poor acoustics, which makes participation in
proceedings difficult for persons with hearing impairments.

Over the next five years the province plans to build seven new courthouses and
retrofit and renovate four existing courthouses, as well as to develop two
previously-approved courthouse projects, as part of ReNew Ontario, the
province‟s five-year capital infrastructure investment plan.11 ARCH recommends
that all courthouses still in use be retrofitted and/or renovated to make them as
accessible as possible to persons with disabilities.

When designing new courthouses or planning renovations, ARCH recommends
that the province incorporate the relevant provisions of the Facility Accessibility
Design Standards recently prepared for the City of London (“London
Standards”)12 and the new Facility Accessibility Design Manual of the Wellington
Accessibility Partnership (“Wellington Standards”).13 The London Standards,
which the Wellington Standards use as a template, were designed with the
participation of members of the disability community and with reference to the
11
  Letter from Attorney General Michael Bryant to Phyllis Gordon, Executive
Director of ARCH, received 28 June 2005. According to the letter, the new
courthouses will be built in Durham, Guelph, Kingston, Kitchener/Waterloo,
Pembroke, Quinte region, St. Thomas, Thunder Bay and Toronto, the last being
a criminal court. Existing courthouses in Cornwall, London, Orangeville and
Sarnia will be renovated.

Responsibility for this project has been transferred to the new Ministry of Public
Infrastructure Renewal, under Minister David Kaplan. Detailed information is
available on the MPIR website at:
http://www.pir.gov.on.ca/userfiles/HTML/cma_4_42052_1.html
12
   “City of London - Facility Accessibility Design Standards”, September 2001.
This document is posted on the Internet at:
http://www.london.ca/Planning/FADS.pdf.
13
   “Wellington Accessibility Partnership – Facility Accessibility Design Manual,”
June 2005, at p. i. This document will be posted on the Wellington County
website, www.county.wellington.on.ca in early autumn. ARCH thanks Michele
Richardson R.N. COHN(c), Health and Safety Coordinator, County of Wellington,
for providing us with a prepublication copy of the manual.


                                         5
accessibility and barrier-free design guidelines of the Canadian Standards
Association and of other jurisdictions14. Both the London and the Wellington
Standards strive to incorporate the principles of universal design 15 and the
respect for the dignity of persons with disabilities inherent in the Ontario Human
Rights Code in making the built environment accessible to persons with mobility,
visual, hearing, intellectual, stamina and dexterity impairments.16

Section 4.5.9 of both Standards applies to municipal courts, and thus is
particularly helpful in identifying potential barriers and obstacles in provincial
courthouses. This section specifies the need for full accessibility, or provision for
future adaptation to full accessibility, of the following features17:

     Public entrances
     Entrances for use by court personnel
     Secure entrances for use by detainees and detention officers
     Security barriers (or an adjacent accessible route if they incorporate devices
      such as metal detectors that cannot be made accessible)
     Corridors throughout public areas
     Spectator and press seating areas
     Jury boxes and witness stands (except where the necessary renovations
      cannot be made without obstructing required exits)
     Judges‟ benches
     Stations for clerks, bailiffs, court reporters, litigants and counsel

Guidelines for tables are found at section 4.3.7 of the London and the Wellington
Standards.18 Counsel tables should be designed so that persons who use
assistive devices, such as wheelchairs and scooters, have room to manoeuvre
around the table. There should be sufficient knee space so that they can sit at
the table without having to transfer to a chair.

Moreover, spectators and the press should be provided with widely-spaced
seats, not benches, and sufficient aisle room to allow wheelchair and scooter


14
     See London Standards, supra, at i, and Wellington Standards, supra, at i.
15
  “The design of products and environments to be usable by all people, to the
greatest extent possible, without the need for adaptation or specialized design.”
London Standards at 95 and Wellington Standards at 100.
16
     See London Standards at 1 and Wellington Standards at 1
17
     See London Standards at 93 and Wellington Standards at 93.
18
     See London Standards at 53 and Wellington Standards at 53.


                                          6
access. Spaces for wheelchair and scooter users should be available throughout
the seating area, not only in the back of the room or on the aisles.19

In addition, Section 4.5.9 of both the London and the Wellington Standards
specifies that an assistive listening system that complies with section 4.4.6 on
both standards (i.e., an induction loop or infrared or FM radio frequency system)
should be permanently installed in each courtroom.20

Where courts have a two-way communication system for admittance or
refreshment areas and drinking fountains for jurors, these also should be
accessible.21

ARCH recommends that, in planning new courthouses and renovating older
ones, detailed advice be obtained from architects, contractors, municipal
planners and officials, and other professionals knowledgeable about accessibility.
However, the best way to determine accessibility is to have a test run by persons
with disabilities, especially including the lawyers, judges and court personnel who
have been, or will be, using the building on a daily basis. Experience will identify
design features that need to be changed or adapted.

For example, if a washroom door has a lever or an automatic opener rather than
a knob, a person need not have fine motor skills to open the door. But if the door
is hinged to swing into the washroom there may be insufficient clearance for a
person using crutches, a wheelchair or a scooter to get past it.

Other examples of crucial design features are making sure that objects such as
water pitchers are not placed in a way that blocks the line of sight of a person
who relies on lip reading, and providing sufficient free parking close to the
courthouse.

Removing communication barriers

General principles

Persons with disabilities, and particularly persons with intellectual disabilities,
should be presumed to be capable of participating fully in all aspects of the
justice system unless there is a compelling reason not to do so.


19
   See Sections 4.1.1 and 4.3.2, London Standards at 9-10 and 48 and
Wellington Standards at 9-10 and 48. See also Task Force submission, supra, at
4.
20
     See London Standards at 71 and 93 and Wellington Standards at 71 and 93.
21
     See London Standards at 93 and Wellington Standards at 93.


                                         7
Plain, simple language should be used whenever possible, both when speaking
and in written documents.         Not only is this good practice but it also
accommodates persons who have a limited vocabulary in English or French due
to intellectual or hearing impairments.

When legal or other technical terms cannot be avoided, judges, court staff and
lawyers need to make certain that all litigants, witnesses and jurors understand
those terms.

Accommodation for visual impairments and dyslexia

A community member noted that documents on paper are a barrier to persons
with visual impairments, and should be provided in Braille to persons who can
read it. Based on further discussion on how to make court documents accessible
to all, ARCH recommends that the court require all correspondence and
documents to be provided in electronic form, and made available both by e-mail
and on electronic media such as CDs. The same standard commercially
available word processing program should be used for all correspondence and
documents.

To provide access to the documents, each courthouse should be equipped with a
sufficient number of computers that can be moved to courtrooms, conference
rooms, judges‟ chambers and other venues as needed. The computers should
be equipped with the following software and hardware:22

    Legible large-type fonts and Braille fonts
    Printer that can handle large and enlarged fonts
    Non-distorting monitor that can be set to a resolution which enlarges the
     information on the screen to the desired size
    Keyboard with tactile markings for home keys
    Text to speech conversion software
    Speakers
    Sound output jacks

Sufficient numbers of Braille printers, Braille monitors with tactile output and
earphones also should be available.

Text to speech conversion accommodates both persons with visual impairments
and persons with intellectual impairments that affect their ability to read. When
necessary, persons can use earphones to listen to the text without disturbing
others in the courtroom.


22
  Further uses for the courtroom computer as a means of accommodation are
discussed below.



                                       8
Other court-related materials also should be made available to persons with
disabilities. For example, a website designed to prepare youths to appear in
court23 relies on a cartoon interface. Much of it thus is inaccessible to persons
who are blind. Most of the actual material on this website is text or audio so
merely adding a text menu would make it accessible.

Accommodation for persons          who       use   Augmentative   and   Alternative
Communication (“AAC”)

Some AAC users communicate using boards or books. These boards or books
may have the alphabet, numbers, common words or phrases, pictures or
symbols. In any event, a neutral interpreter will be needed. If the interpreter is
not familiar with the person for whom he or she is interpreting, an orientation
period will be necessary in order for the interpreter to learn the AAC user‟s
communication method (e.g., gaze, pointing, ways of indicating “yes” and “no”).

An AAC interpreter suggested that each courthouse library should have hard
copies of picture and symbol sets in commonly-used AAC systems such as
Blissymbolics, covering topics including assault, rape, theft and being a witness.
Not all AAC users will have the necessary sets readily available without this
accommodation. Once they become familiar with the relevant symbols, they will
be able to express themselves more accurately, and communicate with their
lawyers and the court.

Picture and symbol sets also could be stored in a computer database, and
printed out as needed. This method of accommodation would be of particular
benefit to those AAC users who keyboard into a computer to communicate by
means of written or voice output.

AAC users sometimes use specially adapted keyboards. These may simply
have larger keys, or they may have pictures or symbols. The proposed
courtroom computer should allow for addition of any software necessary for the
AAC user to plug in the keyboard and the monitor to display the user‟s input.

Other AAC users have devices into which they can program words or phrases.
The output of these devices, and of words, phrases or symbols keyboarded into
the courtroom computer, should be accepted as the equivalent of oral testimony
or argument. They may need assistance in programming from a person skilled in
the use of the device.

The AAC interpreter also suggested that court staff be made aware that AAC
users require frequent breaks in order to communicate effectively.

23
   http://www.courtprep.ca. This website was funded by Justice Canada, but was
designed with Ontario court appearances in mind. See
http://www.courtprep.ca/en/credits/default.asp?

                                         9
Accommodation for persons with hearing impairments

ARCH has received complaints of lack of accommodation for persons with
hearing impairments while they are being detained by the police. One person
stated that a family member was denied an American Sign Language (“ASL”)
interpreter while being questioned prior to charges being laid, despite several
requests.

Another person reported being unable to communicate effectively with his lawyer
because he was required to communicate over a telephone while looking through
a window.

Similar communication difficulties may arise when hearings are held by
telephone or videophone to save travel costs, or when court personnel attempt to
contact a person with a hearing impairment by telephone. Use of a TTY or e-
mail may alleviate these difficulties.

One advocate who is hard of hearing was told by court staff that the presiding
justice would have to be notified every time that he wished to set up a personal
FM system in a courtroom. No room in the county courthouse has a built-in
assistive listening system so during a busy workday the advocate would have to
ask several different court clerks to notify the presiding justice of the use of the
system. Similarly, court staff informed the advocate that it was not possible for
him to request, or be granted, ongoing permission to approach witnesses more
closely than usual when he has difficulty hearing them. This inflexibility is an
attitudinal barrier.24

In a recent case, Mr. Owusu-Ansah, who is Deaf, alleged that he had been
assaulted by the police. Sign language interpretation was provided only during
his own testimony.25 ARCH submits that Mr. Owusu-Ansah could not fully
participate in the trial under these circumstances. People who are Deaf or hard
of hearing who attended the trial also were effectively excluded from following
large sections of the proceedings, until the presiding judge allowed an interpreter
to translate the final submissions into ASL. The interpreter was not paid for by
the court, and was not visible to all of the persons with hearing disabilities in the
public gallery.

As noted by the Canadian Hearing Society (“CHS”) in their submission, court
staff should provide sign language interpreters, Deaf interpreters, Deaf-Blind



24
     Attitudinal barriers are discussed in greater detail below.
25
 See “Officers acquitted of beating deaf man”, Toronto Star (14 October 2004).



                                            10
intervenors or real-time captionists, as needed by the individual.26 Court
personnel should not assume that all persons who are Deaf, deafened or hard of
hearing require the same form of accommodation, or that because a person can
speak, or can communicate with one familiar person in a quiet situation, that they
do not require accommodation in the courtroom.

CHS adds that courts should be aware that additional court time is required when
interpretation and captioning are involved, just as in any proceeding involving
interpretation into another language.

A further suggestion is that court staff, judges and lawyers be made aware of
useful ASL conventions. For example, persons with hearing impairments may
interpret someone‟s holding their hand in front of their face while speaking as a
sign that the conversation is to be private, and therefore not pay attention to it.
Another convention is to wave a hand before speaking, to attract the attention of
a person with a hearing impairment who is not facing the speaker.

The courtroom should be set up so that persons who read lips can face the
people who are speaking to them.

These general principles may suffice to accommodate many persons with
hearing impairments.       However, accommodation must be geared to the
individual‟s needs. For example, Justice David Watt of the Ontario Superior
Court recently held that the principle of accommodation requires that a defendant
be fitted for a needed hearing aid so that he can follow the proceedings against
him.27

26
  See Charter; s. 14 (“A party or witness in any proceedings who does not
understand or speak the language in which the proceedings are conducted or
who is deaf has the right to the assistance of an interpreter.”) ; cf. R. v. Tran,
[1994] 2 S.C.R. 951. Also note the settlement of the human rights claim in
Simser v. Tax Court of Canada, reported at http://www.chrc-
ccdp.ca/publications/2000_lr/page8-en.asp.

27
  See “Alleged Panther's trial delayed again over hearing”, The Globe and Mail
(19 July 2005) at A8.

Cf. R. v. Suwarak, 2005 NUCJ 12. Mr. Suwarak communicates via Inuit Sign
Language (“ISL”), which can be understood only by his family and a few close
friends. One of his friends has acted as his interpreter in prior criminal
proceedings, but swore an affidavit that he does not have the necessary skills to
interpret in the trial scheduled for October 2005. Justice Earl Johnson gave the
court administration until September 2006 to train an ASL interpreter from Iqaluit
in ISL so that he could interpret at the rescheduled trial. Justice Johnson further
ordered that Mr. Suwarak receive training in ASL, which also was to be offered to
his brother and the friend who has acted as interpreter if they wished, so that

                                         11
Finally, the proposed courtroom computer can be used to display real-time
captioning.

Removing process and attitudinal barriers

Adverse affect discrimination

Adverse effect discrimination involves seemingly neutral rules, which apply to
everybody, but which have an adverse effect upon persons from a particular
disadvantaged group, including persons with disabilities. In the context of the
justice system, adverse affect discrimination is most likely to occur when there is
an ordinary rule of process, or “adjudicative habit”, that has the effect of
excluding someone‟s rights to fully participate and be understood. Although
process and attitudinal barriers were not mentioned by the Committee, they must
be addressed effectively.

Please note that the process and attitudinal barriers listed below are only
examples.      ARCH recommends that the Attorney General examine the
adjudicative process and the court registrar‟s process in detail, and develop
protocols and checklists that identify and address barriers therein. This
accessibility audit is essential to removing attitudinal and process barriers before
they adversely affect persons with disabilities.

Awareness training

ARCH further recommends that, to overcome these barriers, court personnel
undergo awareness training designed to make them aware of ableist
presumptions, and to learn how to interact and communicate effectively with
persons with disabilities. For example, the AAC interpreter suggested that court
personnel and jurors attend a training session on AAC so that they learn to look
past the method of communication and the person‟s appearance to the content of
what the person is saying, as well as to make them aware that AAC takes longer
than spoken communication, and requires more frequent rest periods. CHS also
requested that court personnel undergo awareness training concerning ableist
and audist attitudes, and on how to meet the communication needs of persons
with hearing impairments.

Judges, jurors and lawyers need to be made aware that they cannot always rely
on physical appearance as a measure of credibility. For example, some persons
with disabilities are embarrassed to look others in the eye, or have movements
that they cannot control. A speech impairment may be misinterpreted as


they could assist the amicus curiae in communicating with him and planning
defence strategy.



                                        12
incapacity or intoxication. If their lawyer does not inform the court of these facts,
their demeanor may be misinterpreted.

A solution would be the development of a proactive protocol to elicit, prior to the
start of the hearing, whether any participant requires accommodations, and if so,
in what manner. A written notice could be posted on the courtroom door and the
court clerk could ask this question before the judge enters the courtroom. It
would be desirable for clerks to learn enough ASL, or langue des signes
québécoise in French-speaking areas, to sign that, although they cannot provide
sign-language interpretation, if any person in the courtroom requires it, they
should so inform the clerk.

People in the justice system should remember that disabilities can be invisible.
For example, a person with diabetes may wish to bring orange juice into the
courtroom, when only water usually is permitted, so that they can avoid
disrupting the proceedings if their blood sugar level falls. Medication may
interfere with a person‟s thought processes. Individuals may be more alert at a
particular time of day for a variety of reasons, including the nature of their
impairment or medication levels.

Some disabilities cause intermittent impairment. For example, a person with
multiple sclerosis may have difficulty walking at some times, but not others, or be
temporarily blind due to optic neuritis.

Appropriate language

Our understanding of disability has changed very significantly over time. Along
with this, there have been differing views about appropriate language, which has
also changed over time.

The use of language is particularly important in the justice system. Both what is
said in hearing rooms and in decisions are open to the public and scrutinized.
Language should be respectful, credible and consistent with current thinking in
both the legal community and the disability community. For example:

   put the person first – “persons with disabilities”;
   “disability” is considered a more appropriate term than “handicap”;
   “wheelchair user”, rather than someone “confined” or “bound” to a wheelchair
   it is not usually appropriate to speak of someone as “suffering from” a
    disability;
   ask persons who have been treated for a psychiatric impairment how they
    wish to be identified, such as “patient”, “client”, “consumer”,
    “consumer/survivor”, or “survivor”.




                                         13
Court procedures

Court procedures also will require attitudinal accommodation. For example,
when a judge is about to enter the courtroom, the court clerk says “Please rise”,
and stands up at the same time, thereby giving both visual and auditory cues that
all present should stand. The clerk can assist people with intellectual disabilities
and mobility impairments by explaining in advance that, “When I say „Please
rise,‟ everyone in the courtroom should stand, if you are able to do so. 28 This
shows your respect for the justice system.”

Support persons

Some persons with disabilities may need or want the assistance of a support
person. A support person is neither a representative nor an interpreter, but may,
for example, assist a lawyer in formulating questions in a manner best suited to
permit the client to respond. The Committee should consider how best to
accommodate support persons within the framework of the justice system, while
making sure that the person with the disability, and not the supporting person, is
providing evidence.

Scheduling

Court personnel and judges need to be aware that some people with disabilities
may have difficulty in obtaining accessible transportation to suit the court‟s
schedule. Litigants, witnesses, jurors, lawyers or judges may have to arrive late
or leave early, depending on the transit provider‟s availability. Transportation
usually has to be booked days in advance and even then may become
unavailable at the last minute. Furthermore, almost no accessible public
transportation crosses municipal or county boundaries.

A party or witness may require early adjournment of a hearing due to pain, stress
or an intellectual disability. Similar accommodations may be needed by court
personnel, judges, lawyers and jurors with disabilities.

The justice system therefore must be flexible in accommodating scheduling
needs of persons with disabilities. Judges should make it known that they will
unhesitatingly grant all reasonable requests in this regard.




28
  It is important to acknowledge that not all people will be able to stand. This
accommodation is commonly made in similarly solemn circumstances, such as
during religious services.



                                        14
Accommodation of jurors

Section 4 of the Juries Act states that:

         A person is ineligible to serve as a juror who,
         (a) has a physical or mental disability that would seriously impair
         his or her ability to discharge the duties of a juror; or
         (b) has been convicted of an indictable offence, unless the person
         has subsequently been granted a pardon.29

The phrasing of this section suggests an attitudinal barrier, both by emphasizing
ineligibility and by putting persons with disabilities in the same category as
convicted felons.

Jurors should represent the community as a whole, including persons with
disabilities.    ARCH recommends that judges and lawyers start from the
presumption that a person is capable of performing the duties of a juror, with
accommodations as needed. Unless a person is incapable of assessing the
credibility or trustworthiness of a witness, even with accommodation, they should
not be excluded from the jury pool.

Access to Legal Aid Services

ARCH has previously commented on the difficulties that persons with disabilities
experience with the receipt of legal aid services.30 Legal Aid Ontario (LAO) has
undertaken preliminary steps to remedy this situation by convening the
Accessibility Working Group, charged with the task of identifying barriers for
persons with disabilities in the delivery of legal aid services. However, this
Committee is not reviewing certificate tariff items.

Although not expressly within the Committee‟s mandate, ARCH recommends a
review of LAO‟s tariff system in order to permit lawyers representing clients with
disabilities to bill for extra time. The representation of a person with a disability
very often entails more time than is recognized in the tariff. There may be
additional travel requirements and a need for longer interviews to accommodate
the client‟s disability-related needs. Additional interviews may be required and
additional disability-specific research may be essential. ARCH also recommends
that the certificates be made available in additional substantive areas, including
small claims court actions, cases involving power of attorney issues and human
rights complaints.
29
     R.S.O. 1990, c. J.3, s. 4.
30
  “Submission re: Legal Aid Ontario Tariff Review Task Force”, 24 October 2000.
A copy of the submission is attached as an appendix.


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Full accessibility of the Ontario justice system

We urge the Committee to facilitate making Ontario's justice system accessible to
all citizens of the Province, including those with disabilities, as soon as possible.

Thank you for your consideration. We would be happy to respond to any further
inquiries you may have and ask that you contact Heidi Lazar-Meyn, staff lawyer,
or myself.

Yours truly,




PHYLLIS GORDON
Executive Director




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