October 11, 2016
Willful Blindness - The Myth of Access Protected by Legislation
By Chris Stark and Marie Stark
This submission focuses on the regulation, enforcement, complaint resolution, and adjudication options available for persons with disabilities offered by the Federal Government, which we think should be reformed, as part of an Accessible Canada Act. These changes are critical for the full participation of persons with disabilities in Canada. The Federal Government must lead by example.
This submission also illustrates many examples of how the will of parliament has been subverted by administrative barriers intended to discourage use by persons with disabilities.
Generally speaking, most Federal Departments and Agencies like the CHRC, the CRTC and the CTA have substituted complaint adjudication for the enforcement of their own regulations and standards.
This submission consists of our views based on a lifetime of attempting to use complaint processes of the federal government to obtain access. Since we are people who are blind, our vision is from the perspective of citizens who cannot see.
*** General Recommendations:
The government must stop the practice of relying on people with disabilities going through complaint processes in order to enforce their legislative obligations, regulations and standards.
*** Complaint mechanisms must be replaced with official investigations by departments and agencies, on their own motion.
*** Persons with disabilities experiencing barriers to full participation in federally regulated services and benefits must be supported by the federal government.
*** All Government of Canada regulations and standards must be re-evaluated with an inclusion lens, and changes made to foster inclusion of their benefits for citizens with disabilities.
*** Regulations that are specific to access for citizens with disabilities must be revamped to focus on human rights, equal benefit, and measurable outcomes.
*** The new Act must mandate an ongoing federal monitoring program for legislative provisions and regulations, intended to facilitate access for persons with disabilities, conducted with vigor, based on human rights, and focused on measurable outcomes for citizens with disabilities.
*** Federal government employees with disabilities must play a legislated mandatory active role in evaluating implementation of accessibility regulations.
*** The new Act should amend the relevant existing legislation to require the appointment of Members/commissioners with disabilities with organizations such as (CTA, CHRC, CRTC, ETC).
Willful Blindness - The Myth of Access Protected by Legislation
The drive for equal and equitable acceptance of people who are blind into Canadian society is at least 150 years old in Canada, beginning with the struggle for access to educational opportunities, in the mid 1800s.
It is sad to conclude that all this hard work by vulnerable Canadians with disabilities has not yielded the expected results. Yes, there have been a few landmark successes such as talking automated bank machines owned by the chartered bankss, acceptance of guide dogs in public places most of the time, the ability to file our income tax returns independently, audible pedestrian walk signals, audible stop announcements on buses in some cities, some government information in usable accessible formats etc.
The failures are in very real contrast: inequitable education opportunities, unequal access to employment, information, product packaging, health information, television and other technological devices on-screen programming, commercial web sites and other 21st century services.
The bottom line of the explanation is: the myths about blindness will not die out, stereotypes of blindness propagate like a plague, and people who can see are terrified of going blind, when the topic of blindness or a person who is blind comes up. This stereotype means that out of sight, out of mind is more often than not the service delivery model in Canada.
Some recent experiences illustrate these truths. A religion school teacher used an analogy of light bringing good out of the evil darkness like sight for the blind, with a teenager who is blind present in the classroom. A person using a smart phone with an earphone and tapping away on a bus was accused of faking blindness because he was using a smartphone, which the sighted person thought was impossible to do by a person who is blind. Active efforts of airlines to force people who are blind to only sit in window seats, for the convenience of other passengers, while sitting in aisle seats makes it easier for some blind persons to communicate with airline staff. Denying people who are deaf and blind to fly independently. Chartered Banks developing investment training apps and financial management electronic tools for their customers, which they acknowledge were never intended for use by customers who are blind. Companies who continue to operate white label automated banking machines without audible features for use by people who are blind, despite this technology being well-known by industry and used for more than 20 years in Canada . A Canadian who is blind was arrested when police mistook his white cane as a weapon. First responders routinely not first identifying themselves when interacting with people who are blind who are expected to see their uniforms as identification.
Public advocacy resulted in legislated protections in such laws as the Charter of Rights and Freedoms, the Canadian Human Rights Act, the Canada Transportation Act, the Broadcasting Act, The Telecommunications Act, the Employment Equity Act and other Federal Statutes contributing to the eventual ratifying of the UN Convention on the Rights of Persons with Disabilities, and other global agreements. The first delay in taking action, and excuse for not doing so, has always been and still is the need to formulate regulations, standards and guidelines to apply the legislated human rights protections. These regulatory exercises degenerated into a tug of war where consumers with disabilities had to give up much in the way of access, as industry, supported by government regulators, strove to avoid any cost, inconvenience or change to the way they did business. Such myths as the prohibitive costs of accommodations and equitable access were used by service providers. Thus, the delaying as long as possible of, and as weak as possible, of the implementation regulations was the priority of the private sector.
Following the adoption of regulations, standards and guidelines, there was an expectation of robust enforcement. However, since most of these government entities are commercial regulators with a bias towards industry, monitoring and enforcement were and are actively discouraged by appointed officials. These Comissioners, Members and similar appointees are never well known visible people with disabilities. Thus, consumers were herded by these government organizations into making complaints as a way of removing barriers. The quasi-judicial natures of these regulators were actively used to complicate and delay even the simplest of complaints. This avoidance of action resulted in the proliferation of alternative dispute mechanisms including facilitation and mediation . All of these processes are conducted on an unequal playing field, where corporate lawyers and appointed corporate adjudicators bully persons with disabilities, and rely on fatigue, flaging stamina and emotional distress to end processes with secret settlements or lengthy legal decisions protecting industry. Since individual complaint settlements do not apply beyond a specific incident to the service as a whole, they are secret incident specific resolutions.
A by-product of these adversarial processes is the adoption of changes, in advance, if it appears that such changes may be ordered in a formal Decision. This process negatively impacts on the reputation of the complaining party with a disability, resulting in humiliation and disrespect for the effort of people who lacked resources, staff and legal aid during these cumbersum processes. The mental health and well-being of complainants during and after the conclusion of these processes are not recognized, studied or treated.
These tribunals are structured for the administrative convenience of people who are sighted. They drown vulnerable Canadians in a blizzard of processes, procedures, forms and the like. Insistance on written documents at every stage of the process excludes a vast number of people who are blind, in Canada, due to the reality of illiteracy. In order to participate effectively, sight is mandatory.
With respect to your request for aid during the hearing, the Tribunal will work with you to accommodate any personal support services you use to help you with your disability related needs, however, the Tribunal cannot arrange these services, pay for them nor our staff provide them for you.
As a neutral adjudicative agency, the Tribunal cannot provide assistance to any parties to prepare their materials for their hearing
We have lost the ability to see, not the ability to hurt. These complaint processes actively re-victimize the complainant with a disability.
Given the history of people who are blind in Canada, can it be justice to consider the service provider innocent until proven guilty by the defenseless victim?
A recent example of this bullying of complainents involve the question of whether or not it is safe to guide a person who is blind, when the guide is also pushing another person in a wheelchair at the same time. Rather than solving this customer service issue, Canada’s largest airport took the government regulator to Cort to appeal the Canadian Transportation Agency’s (CTA) letter Decision closing pleadings to the Courts, and allowed the complainant to be named as a respondent, even though the Agency, not the complainant, made the decision under appeal. Then the CTA styled itself as a friend of the cort.
54. Furthermore, the Agency has responded to this appeal in order to provide necessary and
valuable assistance to this Honourable Court, particularly given that Ms. Jodhan has chosen
not to take any position on the appeal, and therefore without the participation of the Agency,
this Court would be left without the optimal context in which to ensure it has heard the best
of both sides of the dispute.
In fact of legislation, “undue obstacle” in the CTA is not adjudicated as a human right but an economic or a commercial right, yet the CHRC refuses to intervean. A similar absurdity exists with matters related to CRTC activities.
The above illustrates that in the name of impartial adjudication, these tribunals put the victim on trial. The government process consistently judges the credibility of the victim, on the basis of how they responded to the trauma after the incident occurred, and pretend that they are protecting the rights of people with disabilities. The complainant spoke loudly, used fowl language, made negative comments about their treatment, labeled as unreasonable or uncooperative, for not accepting excuses from the service provider, are credible defenses used by service providers and accepted by federal government tribunals. Cases have been dismissed because the complainant who was blind failed to maintain eye contact with the service providers agent. The fact that the person who was blind started to cry was used to justify the dismissal of a complaint before A Federal Government Tribunal.
Does crying, speaking loudly and other such excuses eliminate a citizens human rights in Canada is a legitimate question. Government tribunals and adjudicative processes consistently and repeatedly violate their legislative obligations, as ordered by the parliament of Canada. These tribunals strive to dehumanize disabilities when adjudicating matters brought before them for resolution.
Despite the fact that it has been a longstanding practice for meeting organizers to provide water bowls for working guide dogs, the following response from a tribunal prooves the point:
“You may bring water dishes to the hearing and if the guide dogs need to relieve themselves, you may ask the staff for an appropriate location outside of the building”.
There is more to bullying than picking out someone from the crowd and hurting them by service reduction due to blindness, sometimes it is not even letting them in, as a member of the crowd of customers, in the first place, and that can hurt even more. Other failures of these complaint driven processes include:
An invasion of the person with disabilities privacy by publically releasing their names;
The exploitation of the information deprivation of most people who are blind by designing processes that are not easily usable including the use of one size fits all forms for administrative convenience of sighted adjudicators;
pleadings and processes that require legal training to cope with effectively, and fails to protect Vulnerable Canadians particularly when routinely allowing respondents to demean and degrade complainants in written responses.
Routinely, these tribunals exploit the information deprivation of people who are blind by providing unusable written communications.
Subject: Scanned from a Xerox multifunction device
Please open the attached document. It was scanned and sent to you using a Xerox multifunction device”.”
This process message ended with an attachment that would not open. It also illustrates once again the policy of dehumanizing the human need represented by these human rights issues, by using an inhuman machine’s address as the sender.
Even the confirmation of receipt of a document is not a standard practice with these tribunals, although the process has long been automated by most companies and organizations: but rigid timelines are strictly enforced, particularly if that can be used as justification for avoiding helping a person with a disability.
It is not the standard practice of the CRTC to acknowledge receipt of responses, and as such, your experience in the case of this complaint is consistent with how all complaints are processed.
The categorizing of these exclusions of service requests for help as complaints is in itself a negative view of the needs of people with disabilities. The term “complaint” encourages lack of respect for the individual. Complaint is a pejorative competitive commercial concept for business relations and has no place in the human rights context. Customer service and usability, rather than judgement and adjudication in a criminal sense, is a more practical and beneficial approach. The question has to be asked: why are customers without disabilities routinely accorded more benefits, human rights and value for money than customers with disabilities within these processes?
Complaint adjudication, like Regulations, are an illusion. Their result is to encourage people who are blind into a state of constant human conflict and human strife, if not willing to accept a second class quality of life in Canada’s supposedly inclusive society. Thus, the majority of people who are deprived of an adequate education, effective rehabilitation services, and meaningful employment, live below the poverty line, isolated in an environment designed for vision and without equitable consumer services, understanding acceptance or usable redress mechanisms within the community, are expected to fend for themselves in processes designed for exclusion. The joke about people who are blind attending a reception and after others ask about blindness, the conversation dries up, is actually a regulatory reality today.
While we did not get as much as we had hoped from the Lets Talk TV exercise, it showed that when the climate is created, people who are blind will gladly speak for themselves and their individual needs and aspirations.
We continue to view this reoccurring strife as a values issue
The issue is who speaks for us. My answer is that all organizations must Foster a climate where people with disabilities in general, and people who are blind in particular, are able to comfortably speak and advocate for our selves. In 2016 the CRTC Telecommunications Survey was not usable by many people who are blind, and even less persons who are blind even knew about this opportunity to have input. If surveys and consultations are not publicized and usable by people with disabilities, we get left out
The notion that we all must speak with one voice is not realistic. What other segment of society speaks with one voice?
To improve this power vacuum and the low esteem felt by many is complex. However, one giant step forward would be the reform of the present complaints structures to one of a victum focused usable approach for all. Success must be measured by the resolution of the barrier faced by the person who is blind. The private sector businesses, not for profits, Departments and Agency’s success must include, as a prominent transparent measurement, the results of their monitoring activities, the number and nature of barriers to full participation by persons with disabilities they identified, prevented and/or removed in their service delivery, on an ongoing basis.
Barrier removal for the user with a disability experiencing the obstacle to full participation must be the true goal.
The complex lengthy complaints application forms should be replaced with a plain explicit service need registration oral or written narrative.
When the only non-salaried participant involved in the process is the complainant, an automatic power imbalance occurs. Paper file investigations must be replaced with actual professional human dialogue in real time to resolve the difficulty. If the matter cannot be solved, like remaining in a passenger’s personal wheelchair during flight, or sufficient floor space for guide dogs on all aircraft and relieving facilities onboard aircraft for guide dogs on international flights, then the government must transparently address the issue, and use such tools as binding orders, tickets, fines, federal license suspensions etc. Victim compensation must be a mandatory aspect of usable service issue resolution, so that service providers are motivated to resolve these customer service issues before they reach government. All new services, equipment and processes introduced into the marketplace or within an organization that are not accessible and usable by people who are blind should never be licensed or allowed to continue to operate until they have been fixed.
Cop-outs like more training, cost, safety, security of others, must no longer be routinely accepted as justifications for maintaining the status quo.
Federal regulators charged with legislative obligations to persons who are blind must accept and embrace the fact that people with disabilities are their customers. Adjudicative Tribunals products are those decisions, settlements and the like. These products must meet the legislated service expectations of their customers with disabilities. Customer satisfaction is the issue. If customers with disabilities were satisfied with the work of such tribunals as CHRC, CTA, CRTC, etc then there would not be this strengthening push for a Canadians with Disabilities Act.
Describing customer centered service provision is not the objective of this document, but a good start can be made by reviewing the existing material on the Treasury Board of Canada’s web site. Legislative provisions are focused on the needs of persons with disabilities. Implementation has changed the focus to a model without a mandate. The bottom line is that the customer identity Skizzophrenea of tribunals is a deliberate attempt to thwart the will of the Parliament of Canada. Again, the legislative intent was that persons with disabilities be the customers to be helped and supported.
The legal term “willful blindness” aptly describes this state of affairs in Canada today. The current reality of the blaming the victim service delivery model for Canadians who are blind must be stamped out in all sectors of the economy. .
People who are blind need resolution within thirty days or less. Processes taking longer than a month are in reality access denied!