Bill C-81 Legal Review

September 21, 2018

Introduction

This legal brief was developed by David Shannon, a FALA partner, and a team of thirteen (13) legal advisors with expertise in disability rights from across Canada. It contains an overview of Bill C-81 and 9 recommendations to improve the draft legislation. These recommendations will be considered by the FALA leadership team as they develop the official FALA recommendations for improving Bill C-81 while it is before Parliament.

Background

In 2015, Prime Minister Trudeau called for new federal accessibility legislation to ensure Canada becomes fully accessible and inclusive for people with disabilities. This legislation would inform people and organizations of their roles in making their environments and services accessible for all people. Prime Minister Trudeau asked the Minister of Sport and Persons with Disabilities to consult with members of disability and Indigenous organizations nation-wide to: a) examine barriers experienced by people with a diverse range of disabilities (e.g. physical, communication, sensory, intellectual, learning and mental health); and b) obtain recommendations to eliminate and prevent these barriers to ensure that all federally regulated goods, services, spaces and places are accessible for people with disabilities.

On June 20, 2018, the Honorable Kirsty Duncan, Minister of Sport and Persons with Disabilities introduced Bill C-81, in the House of Commons. Bill C-81 has included many recommendations proposed by over 140 disability and community-based organizations. However, to effectively achieve full access and inclusion for all people in Canadian society, this bill must be dynamic and comprehensive. A collective approach must be taken, and the responsibilities of public and private entities must be outlined. Section 15(1) of the Canadian Charter of Rights and Freedoms provides that every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination, including on the basis of mental or physical disability.

The Minister of Justice examined Bill C-81 and put forward a Charter statement to discuss how certain Charter rights and freedoms may be impacted. The Minister highlighted that Bill C-81 would promote the aims and values of the Charter’s equality rights. Specifically, entities regulated by the Government of Canada will be required to fulfill specific obligations to ensure that barriers that may hinder total equality are identified, removed, and prevented. Persons with disabilities will be well-represented in important decision-making processes. These processes include, but are not limited to: 1) preparing and updating regulated entities’ accessibility plans, and reporting on their implementation; 2) filling the majority of seats on the Board of Directors of the Canadian Accessibility Standards Development Organization (CASDO); and 3) being consulted as part of the periodic independent reviews of the proposed Accessible Canada Act.

FALA conducted a review of Bill C-81, considering the following questions:

1. Will Bill C-81 achieve substantive equality for people with disabilities pursuant to section 15 of the Canadian Charter?
2.  Will Bill C-81 move the yardstick forward to achieve a fully inclusive Canada?

FALA’s conclusion is that Bill C -81 is important and dynamic draft legislation that could bring Canada much closer to being able to answer yes to both questions. The following analysis and recommendations will help Canada realize these goals by strengthening Bill C-81 before it becomes law.

Bill C-81- What it Says

Purpose:

Bill C-81 aims to identify, remove, and prevent barriers relating to accessibility in Canada. The bill primarily targets barriers in: 1) built environments (buildings and public spaces); 2) employment (job opportunities and employment policies); 3) information and communication technologies (broadcasting and telecommunications); 4) procurement of goods and services; 5) program and service delivery; and 6) transportation (air, rail, ferry, bus).

All organizations that fall under the federal jurisdiction would be required to comply with the proposed Accessible Canada Act. Regulated entities include: Parliament (e.g., the Senate, the House of Commons, and the Library of Parliament); the Government of Canada; federally-regulated private sector organizations (e.g., banks, broadcasting, telecommunications); and Canadian Forces and Royal Canadian Mounted Police.

Part 1: Minister’s Roles and Responsibilities

The minister may provide information relating to accessibility matters, and promote and/or support research to develop methods for removing and preventing barriers. This includes the creation of grants, contributions, policies and programs. The Minister is responsible for administering the proposed Act in all federally-regulated entities, as well as entities that are not assigned to any other governmental department. The Minister is recommended to collaborate with territories/provinces to ensure nation-wide implementation of the proposed Accessible Canada Act.

Part 2: Canadian Accessibility Standards Development Organization (CASDO)

CASDO Board must primarily consist of persons with disabilities and must represent the diversity of individuals living with a disability within Canadian society. CASDO’s mandate will include: 1) developing/revising accessibility standards; and 2) assisting with strategies to better understand, promote, and disseminate best practices for barrier identification and removal. Importantly, every report that CASDO submits to the Minister will be made publicly available.

Part 3: Accessibility Commissioner

The Accessibility Commissioner may provide information or advice to the Minister of Accessibility related to issues that arise from the implementation of the proposed Accessible Canada Act. The Accessibility Commissioner must submit an annual report to the Minister that includes information regarding inspections, orders, notices of violation and filed complaints.

Part 4: Regulated Entities

Regulated entities such as broadcasters, telecommunications providers and transportation providers must submit accessibility plans, feedback processes and progress reports. Accessibility plans must include policies, programs, practices and services related to the identification, removal, and prevention of barriers. Updates to accessibility plans must be made in collaboration with persons with disabilities within 3 years. Plans and progress reports must be made available upon request.

Part 5: Administration and Enforcement

The Accessibility Commissioner may conduct inspections to verify compliance and/or to prevent non-compliance (e.g., examine and/or reproduce any piece of data). Monetary penalties may be issued to regulated entities for violations.

Part 6: Complaint Filing

Anybody can file a complaint with the Accessibility Commissioner that relates to regulations made under the proposed Accessible Canada Act. However, employees regulated by the Federal Public Sector Labour Relations Act and RCMP employees must file complaints under their respective Acts (i.e. Public Service Employment Act, and Royal Canadian Mountain Police Act). The Accessibility Commissioner may choose not to investigate complaints if: a) information is not readily available; b) the complaint is deemed to be trivial or vexatious; c) the complaint is beyond their jurisdiction (e.g., provincial or municipal-related complaint); or d) the complaint could more appropriately be dealt with by another body (e.g. the Canadian Radio-television and Telecommunications Commission or the Canadian Transportation Agency).

Part 7: Chief Accessibility Officer

A Chief Accessibility Officer may be appointed to act as a special adviser to the Minister. The Chief Accessibility Officer may advise the Minister about systemic or emerging accessibility issues. The Accessibility Commissioner, the Canadian Transportation Agency, the Canadian Radio-television and Telecommunications Commission, the Canadian Human Rights Commission, the Federal Public Sector Labour Relations and Employment Board and the CASDO must assist the Chief Accessibility Officer with his/her responsibilities.

Part 8: Regulations

The Governor in Council may make regulations and establish standards that aim to identify, remove, and prevent barriers. However, the Minister of Accessibility may exempt regulated entities from regulations if the Minister believes the regulated entities will take or have taken measures that will lead to an equal or greater level of accessibility for people with disabilities. The Accessibility Commissioner, the Canadian Transportation Agency, the Canadian Radio-television and Telecommunications Commission, the Canadian Human Rights Commission and the Federal Public Sector Labour Relations and Employment Board must collaborate to foster complementary policies and practices in relation to accessibility-related matters.

Part 9: Parliamentary Entities (e.g. the Senate, House of Commons, Library of Parliament)

The proposed Accessible Canada Act would not impose any limitations on the powers, privileges and immunities of the Senate, the House of Commons, and their members.

Part 10: Related Amendments

The following laws would be amended to account for the introduction of the proposed Accessible Canada Act and its goal of identifying, removing, and preventing barriers: the Canadian Radio-television and Telecommunications Commission Act, the Canadian Human Rights Act, the Parliamentary Employment and Staff Relations Act, the Broadcasting Act, the Telecommunications Act, the Canada Transportation Act, the Federal Public Sector Labour Relations Act and the Public Service Employment Act. These amendments would ensure that these acts complement the proposed Accessible Canada Act.

Part 11: Consequential and Coordinating Amendments

The following acts would also be amended to include the proposed Accessible Canada Act: the Access to Information Act, the Financial Administration Act and the Privacy Act.

Recommendations

Based on its review of Bill C-81, this group of legal advisors present the recommendations below for consideration by the FALA Leadership Team:

Recommendation #1: To ensure success and sustainability of the proposed Accessible Canada Act, the Government of Canada must allocate significant funding.

• Substantial funding must be allocated to support implementation of the proposed Accessible Canada Act to achieve significant advances in access and inclusion in all areas of federal jurisdiction. This fund must be controlled and managed by the Minister of Accessibility.
• Appropriate remuneration must be provided to: a) people with disabilities, and b) organizations that represent them, throughout their involvement in the implementation and advancement of the proposed Accessible Canada Act. Their contributions must be valued.
• Funding must be provided for the development and engagement of communication support services, such as sign language interpreters, communication assistants, and communication intermediaries, when required by people using government entities.

Recommendation 2: Expand the six targeted barrier areas to include the domain of Communication.

• As a separate targeted barrier, communication will address a broad range of accessibility barriers, accommodations and supports for people with neurological, physical, intellectual and sensory disabilities across all service areas in face-to-face interactions, telephone communications, public forums and consultations, reading, writing and e-communications.

Recommendation #3: The Government of Canada must recognize the need to place equal focus on all barriers and disability identities.

• Barriers in all areas (i.e. built environment, employment, information and communication technologies, procurement of goods and services, program and service delivery, and transportation) must be targeted equally in order to achieve inclusion in all aspects of daily life for people with disabilities. It is also important for the Accessible Canada Act to target persons within the disability community who face multiple and intersecting forms of discrimination and marginalization (e.g. physical, communication, intellectual, learning, mental health and sensory disability groups, women, members of racialized and Indigenous communities, members of the LGBTQ community, etc.)
• Regardless of the final determination regarding First Nations communities in Canada and their involvement / compliance under Bill C-81 or under a distinct First Nations accessibility legislation, as requested by the Assembly of First Nations through Resolution no - 98/2017, First Nations funding levels and polices must now incorporate a disability lens / component to fully address accessibility barriers, such as those noted in Recommendation 3 (above), within all of First Nations communities in Canada.

Recommendation #4: A Registrar must be charged with directing complaints to the appropriate government agency or department.

• The Registrar will provide intake, administrational, operational, and complaint direction.
• The Registrar shall determine whether complaints should be dealt with by the Accessibility Commissioner, the Canadian Radio-television and Telecommunications Commission, the Canadian Human Rights Commission or another government body. This must ensure that complaints are dealt with expeditiously while using a standardized process.

Recommendation #5: Progressing towards uniform accessibility standards and regulations nationwide will require the Minister of Accessibility to lead a collaborative process with federal, provincial and territorial ministers whom are responsible for addressing accessibility issues.

• This will help ensure that persons with disabilities have equal access in all areas, regardless of their geographic location in Canada.

Recommendation #6: Clear timelines for the development of standards and regulations are required. To ensure that they are achievable, appropriate funding must be provided.

• The Accessible Canada Act must establish timelines for the development, implementation, and/or enforcement of standards and regulations. Effective monitoring and improved accountability will occur only if specific timelines are in place for all parts of the proposed Accessible Canada Act.

Recommendation #7: People with disabilities must represent a majority of directors and committee members on the Canadian Accessibility Standards Development Organization (CASDO)

• A minimum of 51% of the CASDO (e.g., committee members and directors) must have a disability and must include, but not be limited to: Indigenous persons living with a disability(s); women living with disability(s); the Deaf community; the hard of hearing community; the blind community; persons living with physical disability(s); persons living with mental health / illness; persons living with intellectual disability(s); and persons living with speech and/or language disability(s).

Recommendation #8: A primary goal of the proposed Accessible Canada Act is accessibility for all. The Government of Canada must lead by example through developing and implementing excellent accessibility standards and regulations.

• This can only occur with the provision of significant funding. Funding must be managed by the Minister of Accessibility to ensure that finances are regulated appropriately.
• Government of Canada digital services, including internal and external websites, must meet Government of Canada standards level AA of the Web Content Accessibility Guidelines (WCAG) 2.1 as a minimum, and strive to meet level AAA of WCAG 2.1.
• Funding must be directed to support the efficient and timely management of complaints.

Recommendation #9: Financial support must be available to assist with legal fees of individual complainants.

• Similar to the Court Challenges program, the proposed Accessible Canada Act must establish a funding assistance program for individual complainants. This will enable the development of jurisprudence, which will help meet the legislation’s objective of creating a barrier-free Canada.

FALA Legal Advisors