3.1 Federal Legislation
3.2 Federal Government Polices, Studies and Programs
3.3 United States Laws
This section describes all legislation and policies applicable to the availability and accessibility of services for people who are Deaf, deafened or hard of hearing, or have a speech impediment. In particular, it looks at legislation and policies that regulate service provision to the public, which includes the deaf community.
3.1 Federal Legislation
Canadian Charter of Rights and Freedoms
Equality Rights
15. (1) 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 …
(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged…
Canadian Human Rights Act
Section 2 of the Canadian Human Rights Act states that the purpose of the Act is as follows:
…to give effect… to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices….
Among the 11 prohibited grounds of discrimination is disability.
The duty of accommodation short of undue hardship is a fundamental principle of human rights law, especially with regard to the special needs of persons with disabilities. The 1997 Supreme Court decision in the case of Eldridge v British Columbia (Attorney General) dealt with the duty to accommodate the needs of deaf citizens.
The case concerned a Deaf couple who had a baby in a B.C. hospital. The hospital did not provide ASL interpreters to enable the mother and father to communicate with the medical staff. The Court found that the lack of ASL services contravened the couple’s right to "equal protection and equal benefit" of the law as provided under section 15 of the Charter.
In rendering the decision, Mr. Justice La Forest commented on the special needs of deaf citizens and the obligation of governments to accommodate these needs:
"...For many hearing persons, the dominant perception of deafness is one of silence. This perception has perpetuated ignorance of the needs of deaf persons and has resulted in a society that is for the most part organized as though everyone can hear.… Not surprisingly, therefore, the disadvantage experienced by deaf persons derives largely from barriers to communication with the hearing population. "
Mr. Justice La Forest went on to note the following:
" The principal object of certain of the prohibited grounds is the elimination of discrimination by the attribution of untrue characteristics based on stereotypical attitudes relating to immutable conditions such as race or sex. In the case of disability, this is one of the objectives. The other equally important objective seeks to take into account the true characteristics of this group which act as headwinds to the enjoyment of society’s benefits and to accommodate them. Exclusion from the mainstream of society results from the construction of a society based solely on "mainstream" attributes to which disabled persons will never be able to gain access. Whether it is the impossibility of success at a written test for a blind person, or the need for ramp access to a library, the discrimination does not lie in the attribution of untrue characteristics to the disabled individual. The blind person cannot see and the person in a wheelchair needs a ramp. Rather, it is the failure to make reasonable accommodation, to fine-tune society so that its structures and assumptions do not result in the relegation and banishment of disabled persons from participation, which results in discrimination against them. "
Other human rights jurisprudence has established key principles to be followed in devising appropriate accommodation. The most important of these is that accommodation must, to the extent possible,
- maximize the dignity of the person(s) receiving the accommodation; and
- ensure that accommodation is as similar as possible to the services provided to people without a disability.
In light of the legal requirements noted above and the jurisprudence, it is clear that if federal departments and agencies make information available via telephone, they must have services in place to ensure that persons who cannot use a telephone because they are Deaf, deafened or hard of hearing, or have a speech impediment, are accommodated through comparable alternative means of communication.
The duty to accommodate is required to the point of "undue hardship." Canadian courts have yet to fully define the limits of undue hardship, but they have clearly put a very high value on the obligation of accommodation. In the context of the overall communications activities and budgets of the Government of Canada, it is unlikely that the marginal cost required to ensure adequate communication with people who cannot use the regular telephone system would constitute undue hardship.
Telecommunications Act
In 2001, the CAD applied to the Canadian Radio-television and Telecommunications Commission (CRTC) to examine the issue of access to pay telephones equipped with TTYs. The CAD submitted that deaf consumers were being unjustly discriminated against, contrary to subsection 27(2)4 of the Telecommunications Act, because they were denied access to pay telephones in Canada. In the CAD’s view, access to pay telephones meant that deaf consumers should be able to arrive at a pay telephone with nothing other than the means of payment and be able to place a call in the same manner as a hearing user.
The CAD submitted that the CRTC’s interpretation of subsection 27(2) of the Act must be consistent with the equality protections of the Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act.
In Telecom Decision 2004-47 (July 15, 2004), the CRTC ordered all telephone companies in Canada to provide equitable access to pay TTY service by requiring that by December 31, 2007, any bank of two or more pay phones include one pay phone equipped with a TTY. Locations where there is only one pay phone, will be equipped with a TTY if there is verifiable need for the service, no later than December 31, 2010.
The CRTC decision applies only to provision of pay phones by telephone companies and therefore is not directly relevant to the TTY services provided by federal departments and agencies. Nevertheless, it underlines the legal requirement to accommodate the legitimate communications needs of people who rely on TTYs.
3.2 Federal Government Polices, Studies and Programs
This study could not identify any federal government policies, studies or programs that deal specifically with the provision of TTYs by federal departments and agencies. This in itself is a significant deficiency, and it is addressed in this study’s conclusions and recommendations.
Although they do not make direct reference to the communications needs of Deaf, deafened, hard or hearing or speech-impaired citizens the following initiatives should be noted:
Communications Policy of the Government of Canada
The Communications Policy of the Government of Canada is the official Treasury Board (TB) policy governing how federal departments and agencies carry out their responsibilities to communicate with Canadians. The Policy makes no reference to communication with Canadians who cannot use regular telephone systems, although it does make several positive references to the need to communicate effectively using a variety of modes with all Canadians. The Policy requires the Government of Canada to do the following:
4. Employ a variety of ways and means to communicate, and provide information in multiple formats to accommodate diverse needs. Government information must be broadly accessible throughout society. The needs of all Canadians, whose perceptual or physical abilities and language skills are diverse, must be recognized and accommodated. Information must be accessible so citizens, as responsible members of a democratic community, may be aware of, understand, respond to and influence the development and implementation of policies, programs, services and initiatives. Information must be available in multiple formats to ensure equal access. All means of communication—from traditional methods to new technologies—must be used to reach and communicate with Canadians wherever they may reside. Modern government requires the capacity to respond effectively over multiple channels in a 24-hour, global communications environment….
6. Consult the public, listen to and take account of people's interests and concerns when establishing priorities, developing policies, and planning programs and services. The government’s obligation to reach out and communicate with citizens is concomitant with the right of citizens to address and be heard by their government. In a democracy, listening to the public, researching, evaluating and addressing the needs of citizens is critical to the work of government.…
7. Deliver prompt, courteous and responsive service that is sensitive to the needs and concerns of the public and respectful of individual rights. Information services must be managed in a citizen-centered and client-focused manner that achieves results for Canadians. Timely and convenient access to government information and services must be available to the public.… Canadians value freedom, openness, security, caring and respect. It is important for their government to communicate in a spirit that reflects those values….
This policy…applies to all institutions of the Government of Canada identified in Schedules I, I.1 and II of the Financial Administration Act.
Accessibility Domain Architecture
The objective of the Accessibility Domain Architecture initiative of the Chief Information Officer Branch of TBS is to make information technology accessible to all. The Web site of the initiative describes its purpose as follows:
… is to facilitate the creation of a human-empowering infrastructure that recognizes that human beings are diverse and provides the opportunity for each of us to bring out our best — while making our impairments irrelevant. It is through the inclusion of all Canadians — regardless of the type, severity or complexity of the disability that they may happen to have — that true innovation can occur …5
This is a positive objective. However, a review of the documents on the Web site of the Accessibility Domain Architecture shows no specific reference to the telephonic communications needs of persons who cannot use the regular telephone system despite the fact that, as noted above, there are now many computer-based systems that have the potential to significantly improve access for citizens and employees who are Deaf, deafened, hard of hearing or who have a speech impediment.
Results for Canadians: A Management Framework for the Government of Canada
Treasury Board has approved a five-year Service Improvement Initiative (2000–2005), which commits the Government of Canada to achieving a significant, quantifiable improvement in client satisfaction with its services through Results for Canadians: A Management Framework for the Government of Canada. This initiative is a key component of the government’s commitment to citizen-centered service delivery, and includes provisions for the following:
- easier, more convenient, more seamless access to government services; and
- higher levels of quality and performance in service delivery by government organizations.
This five-year initiative is drawing to its conclusion in 2005. Since the results of this project confirm the findings of previous studies, this initiative has obviously not helped improve services for Canadians who are Deaf, deafened or hard of hearing, or have a speech impediment. Improved service should be provided to all Canadians without any discrimination, an objective that constitutes another recommendation of this report.
Task Force and Council on Access to Information for Print-Disabled Canadians
The Council on Access to Information for Print-Disabled Canadians provides advice, identifies funding requirements, monitors progress and makes recommendations regarding the implementation of Fulfilling the Promise: The Report of the Task Force on Access to Information for Print-Disabled Canadians.
In should be noted that while the Council on Access to Information for Print-Disabled Canadians exists, there is no equivalent government body protecting the rights of deaf Canadians.
The Employment Equity Act and the TBS Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service
The Employment Equity Act and the Policy on the Duty to Accommodate Persons with Disabilities in the Federal Public Service do not apply directly to the public (including the deaf community) but rather to candidates for employment or employees of the federal government. Nevertheless, they do incorporate the principle of the duty to accommodate and the need to remove barriers to the full social and economic integration of persons with disabilities.
3.3 United States Law
In Canada, no federal statutes or policies deal specifically with the right of people who, as a result of a disability, are unable to use the regular telephone system to communicate with the government. In contrast, the United States has two laws of relevance, as follows.
Public Law 100-542, of the
Telecommunications Accessibility Act of 1988Public Law 100-542, of the Telecommunications Accessibility Act of 1988 created the United States Federal Relay Service (FRS). The FRS provides communications assistants (CAs), who act as intermediaries for telecommunication between hearing individuals and individuals who are Deaf, deafened or hard of hearing, or have speech disabilities. Any member of the general public can use FRS to contact federal departments and agencies 24 hours a day, 365 days a year. The FRS also provides new technologies, such as voice carry over and video relay, to further facilitate communication.
Although relay services are no longer seen as an optimal means of communicating with the deaf community, the U.S. law is nevertheless a tangible commitment to communications access for all citizens.6
The law also requires the U.S. government to maintain a directory of all federal government TTY numbers. The directory is posted on-line and is updated regularly. The Government of Canada should develop, publish and maintain a similar comprehensive and accurate TTY directory, including a TTY number for reporting incorrect TTYs and inadequate service delivery. This recommendation forms yet another recommendation of this report.
Section 508 of the U.S. Rehabilitation Act: Electronic and information technology
In 1998, the U.S. Rehabilitation Act was amended by the addition of Section 508, Electronic and Information Technology. The law requires all U.S. federal agencies to make their electronic and information technology accessible to people with disabilities. Standards have been established to ensure that all current and future technology used by the government, including phone systems, is accessible to persons who cannot use the regular telephone system.
4. "27(2) No Canadian carrier shall, in relation to the provision of a telecommunications service or the charging of a rate for it, unjustly discriminate or give an undue or unreasonable preference toward any person, including itself, or subject any person to an undue or unreasonable disadvantage."
5. Accessibility Domain Architecture, Chief Information Officer Branch, Treasury Board of Canada Secretariat.
6. Many TTY users oppose the use of relay services because of the inherent lack of privacy and the stilted flow of communication resulting from the use of a CA to conduct the call. Such services are generally not seen as viable alternatives to effective TTY access.