Accessibility for Ontarians with Disabilities Act Alliance Update
United for a Barrier-Free Society for All People with Disabilities
Will Ontario’s New Government Ensure that New Courthouses, Built Using Public Money, Are Barrier-Free for People with Disabilities? — The Previous Government’s Plans for the New Toronto Courthouse Still Have Significant Accessibility Barriers
January 28, 2019
Ontario’s new Ford Government has committed to be more responsible in the use of public money than was the former Ontario Government. Here is an example of where they can and should make a real difference.
We often emphasize that public money should never be used to create or perpetuate disability barriers. Yet the former Ontario Government’s plans for a new major courthouse in downtown Toronto still lack full and proper accessibility, even though some good steps have been taken to include some needed accessibility features. The AODA Alliance has been in the lead in bringing this issue to public attention.
Here is the latest installment in this story. To its credit, the team leading the design and construction of the New Toronto Courthouse, intended for the heart of downtown Toronto, recently built a mock-up of a courtroom, and a public service counter, to be included in that facility. The team commendably sought input from various stakeholders on this mock-up, including from an accessibility perspective. On January 16, 2019, AODA Alliance Chair David Lepofsky was given a hands-on tour. He found a number of helpful features in the design, but a number of serious accessibility barriers.
A number of the barriers we discovered are described in the January 21, 2019 letter from the AODA Alliance to Assistant Deputy Attorney General Dante Pontone. We set that letter out below. We earlier described other examples of accessibility problems with this courthouse’s design in the AODA Alliance’s October 5, 2017, and April 6, 2018 letters to the previous Attorney General, and in our May 22, 2018, letter to Assistant Deputy Attorney General Dante Pontone. More on this topic can be found in our May 31 2018 and June 1, 2018 letters to Mr. Pontone, which we set out below.
It is good that there are some helpful accessibility features in this mock-up. However, it is very troubling that there are the accessibility problems that we and others have identified, especially since construction of this courthouse is meant to begin later this year. We await word on what the Ontario Government is going to do about these concerns.
There has been another interesting and important development in our quest for a fully accessible court system. One important way for the public to participate in the justice system is as a member of a jury. Yet people with disabilities have faced barriers impeding them from serving as a juror. Last fall, in a break-through, a person with vision loss was permitted to serve as a juror. Below at the end of this Update is an article from the December 29, 2018 Toronto Star reporting on this event. It quotes AODA Alliance Chair David Lepofsky, among others.
For more background on the courts accessibility issue, you might check out the ground-breaking 2007 official report entitled “Making Ontario’s Courts Open to Persons with Disabilities” which you can find on the website for the Ontario Court of Appeal.
Finally, on another accessibility topic, there have now been 221 days since the Ontario Government shut down the work of the AODA Standards Development Committees that were working on recommendations on what the Government should include in the Health Care Accessibility Standard and the Education Accessibility Standard. The longer this freeze goes on, the more students with disabilities and patients with disabilities have to continue enduring unfair accessibility barriers.
January 21, 2019 Letter from the AODA Alliance to Ontario’s Assistant Deputy Attorney General Dante Pontone
ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE
1929 Bayview Avenue
Toronto, Ontario M4G 3E8
January 21, 2019
To: Dante Pontone, Assistant Deputy Attorney General
Via email: firstname.lastname@example.org
CC: The Hon. Caroline Mulroney, Attorney General of Ontario
Paul Boniferro Deputy Attorney General for Ontario
Re: Disability Accessibility Issues in the New Toronto Courthouse
I am writing to bring to your attention further concerns regarding the plans for accessibility at the New Toronto Courthouse, which is supposed to begin construction later this year. As you know, the AODA Alliance has been raising concerns about this project over the past two years.
We appreciate your efforts and interventions to date to try to address our concerns. As a result of your efforts, there have been some improvements. However, as things now stand, we have no assurance that the courthouse that is to be built will in fact be properly accessible for court participants and other attendees with disabilities. We need your intervention now to fix this.
As you recall, as of the 2017 fall, three years into the design of this courthouse, the initial team setting the accessibility project specifications for this courthouse (which was later terminated), and the subsequent team that is to oversee the bidding process and compliance with the project by the winner as it relates to this issue had never consulted with any people with disabilities. It was only after our discovering this and pressing for change that the Government belatedly decided to form a disability advisory group to review the project plans and offer accessibility input. For the AODA Alliance, I am a member of that advisory group.
By the time our advisory group had been formed and met in the 2018 spring, the Government had already settled on the project accessibility requirements, had conducted the competitive bid, and had chosen the successful bidder and design. Our advisory group quickly discovered a series of serious accessibility problems with the planned design. I have detailed some salient accessibility concerns regarding this project in my October 5, 2017, and April 6, 2018 letters to the previous Attorney General, and in my May 22 and 31, and June 1, 2018 letters to you. Key correspondence on point is posted on the AODA Alliance website.
It is our understanding from what we have been told by Government representatives, the Government’s various consultants on this project, and the successful bidder Ellis Don, that some of the accessibility concerns that the disability advisory group has raised cannot be addressed, because it is too far along in the planning for this new courthouse. This is emblematic of the fact that accessibility must be centrally incorporated into a project’s planning from the very start. It should not be left, in whole or in part, to much later in the process, as was the case here.
This should not come as news to the Ministry of the Attorney General, or to Infrastructure Ontario. Both of those public organizations have known this for years but have evidently failed to effectively act on it. We regret that there appears to be within both organizations some systemic impediments to acting effectively on accessibility for people with disabilities.
It is good that the Government is working now on developing a new accessibility standard for new courthouses, and that this is being taken into account earlier in the design of the future Halton Courthouse project. However, the 2007 Weiler Committee report on disability accessibility barriers in the court system had pointed out some 12 years ago about the need to develop a new and update-to-date accessibility standard for courthouse design. Since then, several new courthouses have been built at huge public expense, but without ensuring their proper accessibility. All of this is going on years after the Ontario Legislature unanimously passed the Accessibility for Ontarians with Disabilities Act in 2005, and a third of a century after equality for people with disabilities was enshrined in the Ontario Human Rights Code and the Charter of Rights.
Let me turn to the specifics of the New Toronto Courthouse courtroom and service counters mock-up that I visited on January 16, 2019. It was good to see a number of accessibility features built into the mock-up. However, I identified a number of accessibility concerns. Evidently, others who have earlier visited the mock-up also pointed out the same or different concerns.
It is good that the Government had this mock-up prepared, and that it sought input on it, including on accessibility concerns. It is, however, deeply troubling that a number of these problems made their way into this design even at this late stage. This happened after the Government had consulted with our disability advisory group on the building’s design, after there were two accessibility consultants on retainer to advise on this project (one for the Government and one for EllisDon), and after advice on some of these issues had already been given by the disability advisory group.
- It appears that in the design of the courtroom mock-up, no account was taken of the space, line-of-sight, and lighting needs to accommodate sign language interpreters in the courtroom. During my review of the mock-up, I asked if the team had consulted a sign language interpreter on this. I was told only that a hard of hearing member of the disability advisory group had toured the mock-up (i.e. after the mock-up had already been designed)
During my tour of the mock-up, I explained that the design needs to accommodate the needs of Sign Language interpreters in several different positions in the courtroom, e.g. interpreting for counsel, or for an accused, or for a witness. More than one interpreter could be interpreting from different positions in the courtroom at the same time. The interpreter needs to have enough room. There must be a clear line of sight to the person for whom they are interpreting. The lighting needs to be appropriate.
I had raised this specific issue months ago, during a meeting the Government and EllisDon had with the disability advisory group. At that time, a lead design official for EllisDon had not even known that Sign Language interpretation had to take place in the courtroom, unlike other spoken language interpreters who can be situated in a remote booth elsewhere in the courthouse.
Because I had given this feedback months ago, it is difficult to understand why this was not further explored and addressed prior to designing the courtroom layout and going to the substantial expense of building the mock-up. Having learned of the failure by the Government and EllisDon to deal with this, I have just connected the Government’s accessibility consultants with a Sign Language Interpreter I know, who works in the Toronto courts, and who is readily available to advise the Government on this issue.
- It is good that there are power door openers e.g. for the courtroom doors. However, none of these that I examined had accessible Braille signage for them. There was also no Braille signage for security card readers. The card readers I saw were close to a power door operator, both unlabeled, and both similarly shaped. This should be an obvious and simple accessibility provision for all such controls.
- There is a serious barrier to effective communication at the proposed Court Services counters. The mock-up for the Court Services office has a Plexiglas barrier from the counter level to the ceiling for each public service counter. A couple of small openings are cut out for a member of the public to speak to the Court Services official, behind the barrier, and to pass documents back and forth.
I was told that this partition is intended for security for the Court Services workers. It is not meant as bullet-proof protection. Anyone entering the building is required to go through scanners to prevent weapons from entering the courthouse. Rather, this is to prevent a member of the public for lunging at a Court Services worker.
I pointed out the obvious fact that this Plexiglas partition presents a significant communication barrier for people who have difficulties hearing. I was told that there would be a hearing loop technology available. When I asked, I was told there had been no plans for a speaker to amplify the voice of the Court Services worker.
The designers were evidently aware that there is an issue here, as the mock-up presented three different kinds of openings, through which a member of the public can speak to a Court Services official. I was asked for feedback on which option for openings in the partition seemed more effective for talking to the Court Services staff.
I presented the fact that this communication barrier will be a big problem for many, not just for those who having hearing loss to the degree where they use assistive listening devices. I noted that according to the Ministry of the Attorney General’s Court Services officials, the most common request for disability accommodation in the courts is related to hearing loss issues.
I proposed the simple and, I would think obvious solution of replacing the Plexiglas partition with a series of bars, with openings to pass documents through. That would let sound pass through much more easily, while still providing the security needed.
I foresaw that if the Plexiglas design is retained, Court Services workers would have to spend their day yelling through opening in the Plexiglas, while sitting next to other Court Services workers who are similarly yelling through the openings in the partition. I doubt that is an optimal working situation.
I would add to my feedback given at the time that to require members of the public to have to raise their voices to ensure they are heard through the Plexiglas openings might require them to speak loudly about personal information that they would not wish to share with others, who are behind them, waiting in line.
- I was told that the intention was for only one out of every six or so public service counters in the Court Services office to be an accessible one. This in turn would require Court Services staff to use technology to give priority to members of the public who need the accessible counter, and then to route them to those counters. Not just for this reason, there is a plan for everyone who comes to that Court Services area to use a touch screen device to sign in, get their number, and know which counter to attend. I address this further below.
I asked why they don’t simply plan for all counters in that area to be at an accessible height. I was told that people who are standing prefer not to have to sign a document at the lower counter height. The counter height could be made adjustable. As an alternative, I suggested a simple low-cost solution. On any accessible counter height could be a moveable box, that would provide a signing surface that accommodates a person who is standing. With this, there would be no need to have to have some sort of process for identifying who needs an accessible counter, and for giving them priority and routing them to the right counter.
- I asked how a person would know that it is their turn to proceed to a Court Services counter. I was told that a light over that counter would illuminate. I explained that this was a clear barrier for people with vision loss. There should also be an audio prompt or announcement.
I explained that Service Ontario had a similar accessibility problem until we brought it to attention of senior Government officials. People coming to Service Ontario for help with such things as a health card used to be given a number and told to watch a screen for when their number came up. This happened to me a few years ago. I am blind, and use a readily visible white cane.
- As noted above, there is a plan for everyone who wants to go to the Court services counter to have to first get an electronic tablet, key in some information and then get a document printed out that will tell them where to go etc. I suggested the far less costly option of just having everyone line up and wait their turn, as is routinely done at banks and other like services.
The tablet threatens to present accessibility problems. I was told that a Court Services worker would be available to work with people with disabilities. However, this may not be evident to people with disabilities who are there. Moreover, apart from disability concerns, there is always the added confusion of learning to use a new app or tablet, compounded if the system goes out of order. A line-up has none of these problems. I suspect that court attendees would rather not have to learn to navigate some new app.
- We were told that the plan is for the prisoner’s box in each courtroom in this new courthouse to have a design that lacks accessibility. There is one step up into the prisoner’s box.
If an accused requires an accessible prisoner’s box, one will be brought in and assembled, when needed. We were told that this would take about an hour to do. It requires the court to be notified in advance of the need for this on a particular day. This in turn requires lawyers to all know that they need to request this in advance. It requires that any such request not get lost in the shuffle of a huge, busy courthouse.
I proposed that instead, they should simply design an accessible prisoner’s box for permanent use in each courtroom, rather than planning in advance to create new barriers. This avoids the need in a very busy courthouse to have to be notified in advance, and to have the accessible prisoner’s box brought in and assembled. The risk is real that the message can get lost and the accommodation not set up in time.
Moreover, in a very busy, rapid turnover courtroom like the one on the ground floor for first appearances, the prisoner’s box should always be an accessible one. An accused, arrested the night before, and brought in for a first appearance, will likely not have a lawyer who knows to request an accessible prisoner’s box.
I was told that the reason the inaccessible design was desired was because police would like the accused to be raised up one step, for when the officer reaches in to cuff the accused. I expect that other solutions to address this problem should be discoverable with some creativity, without needing to have an inaccessible prisoner’s box.
- On the wall just outside the courtroom mock-up is a sign listing points for courtroom decorum. We discussed options for making this available in an accessible format.
However, I also asked if the list of points in this public notice included any announcement of how to seek accessibility accommodations while at court. I was told this was not part of the text.
I have several times raised with Ministry officials at the Ontario Courts Accessibility Committee that they need to do a much better job of publicizing the availability of accessibility supports in the courts, including the availability of a Courts Accessibility Coordinator in each court facility. This sign would be an important place to include that information, for the public, as they wait in the hall to enter the courtroom.
I raised a number of other points. The foregoing ones rank among the most serious ones. On the one hand, it is good we are being consulted on this. On the other hand, the fact that these problems were designed into this plan shows that the Ministry and its successful bidder at this late date still are falling quite far short on accessibility.
At this consultation, there were two different accessibility consulting firms present. One was retained by the Government’s project compliance team. The other is retained by EllisDon. The taxpayer is paying for them both. We want to know what accessibility advice they have given on this design. At a recent Ontario Courts Accessibility Committee meeting, the Ministry had indicated that the Government was going to have its accessibility consulting firm report directly to the Ministry, rather than the private architect whom the Government has retained to head the project compliance team. I should note that the head of that team, Roman Mychajlowycz of the Kleinfeldt Mychajlowycz Architects firm, has not attended any of the consultation sessions last year at which I was present, where we gave input on the accessibility problems with this courthouse. He was also not present at the consultation on this mock-up I attended. I do not know if he attended any of the other consultation sessions on this mock-up. Given the seriousness of the recurring accessibility problems with the design of this courthouse, direct face-to-face involvement by the head of the compliance team, paid by the taxpayer, would seem to us to be appropriate, and not merely his subordinates.
Finally, we would like to know the status of the Government’s work on developing an accessibility standard for the design of future courthouse facilities. We have understood that the KMA firm was working on that. We earlier requested from the Government a draft of their proposals. We would also like to see any advice on the KMA proposals that have come from the accessibility consulting firm that are being paid by the taxpayer to advise on it.
We continue to be eager to help ensure that Ontario’s courts become fully accessible to people with disabilities, and that any new court facility be designed to be accessible.
David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance
May 31, 2018 Letter from AODA Alliance Chair David Lepofsky to Assistant Deputy Attorney General Dante Pontone
To: Dante Pontone, Assistant Deputy Attorney General for Ontario
From: David Lepofsky, Chair, AODA Alliance
Date: May 31, 2018
Thank you so much for attending the May 24, 2018 meeting of the Disability Sector Advisory Group that the Government convened this spring to get input on accessibility issues in the design of the New Toronto Courthouse. Construction of that courthouse is expected to commence sometime next year. We need your active assistance and intervention to ensure that accessibility is properly included in this project.
It was helpful to know that the courthouse design team is considering feedback that the Advisory Group had given at our earlier March 20, 2018 meeting. At the March 14, 2018 meeting we had identified serious accessibility problems in the design of the New Toronto Courthouse that the Government had selected in the competitive process. I want to summarize a few of the key points that the disability sector representatives made at the May 24, 2018 meeting.
* At the May 24, 2018 meeting, the information that the design team gave our Advisory Group revealed that in troubling ways, it appears that the private company that is building this courthouse is giving the building’s aesthetics an improper priority over ensuring accessibility for people with disabilities, with the Government’s evident agreement or silence. I offer two examples from this meeting.
First, back at the March 20, 2018 meeting, we had pointed out that the use of “open risers” in the feature staircase in the courthouse’s main lobby presents an accessibility and safety problem for people with vision loss, among others. The Government’s specific requirements for this building preclude the use of open risers. Yet EllisDon, whom the Government selected to build this courthouse, disregarded this, and included open risers in the building design. The Government selected that design in the competitive bid process, despite its direct contravention of this accessibility requirement in the Government’s Project Specific Output Specifications (PSOS).
At the May 24, 2018 meeting, we were told that the project design team is considering “options” for dealing with this issue. We asked what options are being considered. We did not get a direct answer. They did not want to say what options were being considered. We don’t understand why this was being withheld from us.
Moreover, one of the design team members in effect asked us at the May 24, 2018 meeting if there was no way that open risers could be included in the building. We said “no”. We explained there that they were treating aesthetics as more important than accessibility.
Second, we had indicated at our March 14, 2018 meeting that the three-storey atrium design of the building created several accessibility problems. There would be inconsistent lighting and glare during the day, creating problems for those with low vision. The acoustics present problems for people who are hard of hearing, or people with vision loss who use echo-location to help navigate. People with sensory integration problems, include some with autism, also experience sensory overload in such environments. Eliminating this atrium design would eliminate these problems and create more useable floor space.
At the May 24, 2018 meeting, the project team’s solution appeared to be to keep the atrium design, but to consider canopies, overhangs and blinds to control lighting, and some acoustic protections to reduce acoustic problems. We were told about sound and lighting studies being conducted to look into these effects.
We responded that the aesthetic tail appears again to be wagging the dog. If blinds must be adjusted throughout the day to regulate the light in the building, there is the real risk that this will not always happen. We won’t know that these palliative measures will work until the building is built, by which time it is too late. The acoustic studies did not explore the impact of the acoustic measures on echo-location for navigating the building. We could only be satisfied that these palliative measures all worked if we could now visit a comparably-designed building that includes all these lighting and audio features, to test to see if they are reliable and consistently effective.
* At the May 24, 2018 meeting, we were not shown the layout for any of the non-public secured areas of the building, but were assured that they would be accessible. We asked to be able to see those designs, on an undertaking of confidentiality if necessary, so we can give feedback. We appreciate that the project team agreed to look into this.
* We were told at the May 24, 2018 meeting that the seating area that was proposed for people with disabilities who are waiting for Wheeltrans would be inside the vestibule, just inside the main doors. The disability sector representatives identified several problems with this.
That seating location only has a direct line of sight to half of the pick-up spots where vehicles would arrive. There is an obstructed view to the rest of those drop-off spots. In addition, this seating is placed between the doors to the outside, and the doors to the main floor. As such, people sitting there will have to endure regular blasts of cold air when waiting during the winter, and hot air during the summer, each time the doors open and close.
* We noted that placing Court Services on the third floor presents real problems. This can be the first stop for many who arrive at the courthouse. They must clutter up the elevators to get there, and then head up from there to their destination. This first stop should be on the main floor.
* We understand that there is no location planned to situate the courthouse’s disability accessibility and accommodation coordinator on the ground floor. We emphasized that they should be readily available on the ground floor, to be a first contact, where needed, for court attendees with disabilities.
* We were told that the public was to be told by way of posted signs about the availability of disability services. We emphasized that this was insufficient, as it will not accommodate those with vision loss or dyslexia. I would add that this would not accommodate those with literacy issues.
* At our earlier March 14, 2018 meeting, we were told that only one interview room per floor would be accessible. At the May 24, 2018 meeting we learned that this information had been incorrect. We were told on May 24, 2018 that all of the interview rooms are accessible, but only one room per floor will accommodate a scooter. We were still not able to learn how these rooms are to be assigned, to ensure that they are not simply used by people who don’t need that accessibility feature.
* We learned at the May 24, 2018 meeting that some important accessibility concerns that we raised at our earlier meeting have not been corrected at all. The problematic layout of the six public elevators has not been changed, despite the accessibility concerns. There has also been no change to the plan to have a universal washroom on only eight of the building’s seventeen floors, and not on every floor. No reason for this was given.
* For some of the other concerns we had raised at the March 14, 2018 meeting, we were told that it is now too late in the planning process to change certain aspects of the building’s design. This demonstrates that it was wrong for the Government not to consult on accessibility some three years ago, at the design process’s outset.
We look forward to further meetings with the disability sector advisory group, to ensure that the accessibility concerns with this building are all effectively addressed.
June 1, 2018 Letter from AODA Alliance Chair David Lepofsky to Assistant Deputy Attorney General Dante Pontone
To: Dante Pontone, Assistant Deputy Attorney General for Ontario
From: David Lepofsky, Chair, AODA Alliance
Date: June 1, 2018
Re: Accessibility for Ontarians with disabilities in New Courthouse Construction in Ontario
Thank you for taking the time to speak to me today about the future actions needed to ensure accessibility of the New Toronto Courthouse, about accessibility of the forthcoming new Halton Peel Courthouse (at an earlier stage of design) and about the development of a new Government accessibility standard for new court construction. Here are the key items which we requested and those to which you agreed. If I have anything incorrect, please let me know as soon as possible.
Re the New Toronto Courthouse
I asked that you continue to attend any upcoming meetings of the Disability Sector Advisory Group regarding the New Toronto Courthouse. Your oversight is critically important, in our view. Thank you for being agreeable to this.
We have not been told how many future meetings the Government plans for this Advisory Group regarding the New Toronto Courthouse. I recommended to you that this Advisory Group continue to meet with the Government and its contractors until all the accessibility concerns regarding this courthouse have been effectively resolved. I understood you to be supportive of this.
I explained that it is important in this project, and in each future project, that the Government directly retain the accessibility consultant, retained on these projects, and that this consultant report their accessibility advice directly to the Government. Otherwise, as at present, it appears that their accessibility advice is given to the private architecture firm or other private organization that hired them. What the Government and the public learn about that accessibility advice is only that which the retaining private organization chooses to pass along. The public is paying for that advice. The Government should receive that advice directly, and in its entirety. The public should be able to see this advice as well. I understood that you are going to consider this.
The Halton Peel Courthouse
I understand that the accessibility requirements for the future new Halton Peel courthouse have not yet been finalized. The Project Specific Output Specifications PSOS for that project are still under development.
I recommended that the Government now get advice from the disability community, e.g. from the Disability Sector Advisory Group, as these are being formulated, and certainly long before they are finalized. No longer should we ever be told that it is too late in the design process to take into account an accessibility concern. I understood you to be agreeable to and supportive of this.
I therefore asked that the Government now show us these accessibility requirements at whatever stage they have now reached. Even if they are at a draft or preliminary stage, it would help to see what has been developed so far, so that we can give our feedback. As the New Toronto Courthouse experience revealed once again, the earlier in the design development process this consultation occurs, the better will be the end product.
New Accessibility Standard for Future Courthouses
As we discussed, Bob Topping told the Disability Sector Advisory Group at our inaugural March 14, 2018 meeting that his accessibility consulting firm, DesignAble Environments, was working on a new accessibility standard for new court consultation. Corresponding to this, the lead architect for the EllisDon firm told us at that meeting that when they designed the plans for the New Toronto Courthouse, they used the old accessibility standard that the Ministry has had going back many years.
As a result, I asked you to find out who else, if anyone, is working on this new courthouse accessibility standard, beyond DesignAble Environments? We asked to see that standard in its present state of development. We also proposed that the disability community be consulted on this, as early as possible, in its development. I urged you to contact Mr. Topping to follow up on this and to get more information, since it was he who told us about this work at the March 14, 2018 Advisory Group meeting. You agreed to look into this, including speaking to Mr. Topping. Thank you for agreeing to get back to me on this.
In conclusion there is a clear long term need for problems such as these to be resolved on a Government-wide basis. However, in the meantime, resolving the accessibility needs of Ontarians with disabilities in these courthouse projects cannot await a resolution of broader Government-wide deficiencies in how it deals with planning for the accessibility of new infrastructure construction.
I look forward to hearing from you on the important issues we discussed, and especially on those listed in this letter.
David Lepofsky CM, O. Ont
Chair Accessibility for Ontarians with Disabilities Act Alliance
The Toronto Star December 29, 2018
Blind juror was almost rejected
Disability advocates seek removal of courtroom barriers
Betsy Powell Toronto Star
A recent criminal trial at Toronto’s downtown Superior Court featured what may be a first in Ontario: a blind juror.
The fact that is, if not a first, an extremely rare occurrence in Ontario underscores that much more needs to be done to remove the barriers to equal treatment in the criminal justice system, disability advocates say.
“Certainly this applies to ensuring adequate representation of persons with disabilities on juries,” says Luke Reid, a lawyer with ARCH Disability Law Centre in Toronto.
The Criminal Code allows people with vision or hearing disabilities to serve on juries. However, an accused may challenge a juror’s service and the Juries Act deems jurors ineligible if they have “a physical or mental disability that would seriously impair his or her ability to discharge the duties of a juror.”
“However, human rights law would demand that this (or any) requirement not be interpreted in an overbroad way and that persons with disabilities have the right to the necessary accommodations,” Reid wrote in email.
Juror 29743 almost didn’t get picked. While there are likely numerous reasons preventing people with impaired vision from sitting on juries, there is still a “very active debate” around the ability of a “trier of fact” to see a witness’s demeanour in order to assess credibility, Reid noted in an email.
“I think courts tend to err on the side of caution where the right of an accused to a fair trial is potentially at issue.”
This fall, a day before jury selection in an impaired driving causing death trial, prosecutor Marnie Goldenberg told the judge she and defence lawyer Carolyn Kerr had some concerns about a prospective juror, who had shown up at the courthouse with a service dog. Goldenberg told the judge numerous photos would be introduced during the two-week trial.
Ontario Superior Court Justice Rob Goldstein told the lawyers while it was entirely appropriate to raise the issue, he didn’t intend to treat Juror 29743 any differently than other jurors.
“I think it’s something we canvass and we treat her the way we treat any other juror who has a health issue,” Goldstein said. The next day, after Juror 29743 entered the courtroom with her service dog, the judge asked her how she would “deal” with all the photos in the case.
“It would be through description … I cannot see them,” the woman, who works in human resources, told Goldstein.
“OK, all right, so if they are described – you can absorb what’s in them?” the judge asked. She said yes.
The jury selection process continued in the normal course with two already selected jurors, designated as “triers,” deciding whether or not she was an acceptable pick.
Juror 29743 said she had not heard about the case involving a man charged with impaired driving causing death on April 23, 2016, near Jane St. and Humberview Blvd. She also indicated she could consider the evidence without prejudice or bias after being told the accused was a visible minority and Muslim. Nevertheless, the triers immediately rejected her.
Goldstein, however, wasn’t satisfied. He told the triers he was going to reread their instructions and asked them to consult each other again. The test to decide is if a juror would approach jury duty with an open mind and decide the case based solely on the evidence and his legal instructions, the judge told them.
This time, the triers found Juror 29743 acceptable while counsel on both sides said they were “content” with the choice. After a few days of deliberations, the jury returned to court with a guilty verdict. The Star’s attempts to speak to Juror 29743 were unsuccessful.
Lawyer David Lepofsky, a retired Crown attorney who is blind and was not involved in the case, said having a blind juror not only makes the legal system more representative of society, it makes lawyers more effective.
There’s a lot of stuff that goes on in a courtroom that is visual and needs to be explained for the transcript, or audio recording, so having a blind juror will help ensure that happens, “so you get a better record, and it’s better for everybody,” Lepofksy said.
But there are some exceptions where a visually impaired juror might have to be excluded, he added. If, for example, the guilt or innocence of an accused is entirely based on whether a jury believes an accused looks like an assailant captured in a surveillance video.
Lepofksy, now a visiting professor at o University’s Osgoode Hall law school, said traditionally, appeal courts said trial judges were in a superior position to assess the credibility of witnesses, because they, unlike appeal judges, can access demeanour.
That view has evolved, and now appeal courts are increasingly warning “it’s wrong to over emphasize visual demeanour when assessing credibility.” He uses himself as an example to explain how everyone has different ways of doing that.
“Sighted people use eyes. I listen to a voice … and the whole idea of a jury is it’s a bunch of different people … pooling their different ways of assessing credibility and then voting as a group. Well, who’s to say visual is the only way to do it,” he said.
“Those of us who experience the world non visually, have our own experience too.”
While jurors don’t have to be statistically representative of society, there is an expectation that they bring to the courtroom their own life experience, “drawn from different parts of the community, and they pool to form a collective assessment, a very difficult assessment, who to believe about what happened.”