For Attorney Jason Mitschele, the courtroom is a place of justice and sometimes a place of danger. In some ways, the pandemic has only increased the risk for the Toronto-based crown attorney who is blind.
Even before COVID-19, many courthouses – with their stairs, narrow doors, and limited space – were difficult to access for lawyers and clients with vision loss and other disabilities, said Mitschele, who has worked for the Canadian Public Prosecutor’s Office (PPSC) for 17 years. In 2019, the PPSC, Co-Provincial and Territorial Head of Public Prosecutor’s Office presented Mitschele with his annual Courage and Perseverance Award.
But amid the pandemic, he said hybrid trials prior to Toronto’s lockdown, which combined distant appearances with face-to-face presence in the courtroom, were sometimes difficult for him and his guide dog.
“Going to court and having vision loss in this COVID era is a huge challenge,” he told attendees at a recent Ontario Bar Association webinar entitled “Ensuring Effective Participation in the Justice System for People with Vision Loss.”
“There is Plexiglas, there are wires and maybe there are places where you should distance yourself socially, where you can’t say it,” said Mitschele. “I can’t always tell if someone is six feet from me or not, and guide dogs are not trained to stay six feet from people. So it’s hard to know if you are socially distancing yourself.”
For some people with disabilities, the advent of virtual hearings has been easier “because you are out of the world trying to find your way around the built environment,” he added. “You can be at home on your computer or on your phone. For a blind person, zoom is pretty good. You can do most of the things that you can’t see with Zoom. “
The panel during the December 11th professional development event included two other lawyers with vision loss.
David Lepofsky, Chair of the AODA Alliance, Associate Professor in the University of Toronto Law School and Visiting Professor at Osgoode Hall Law School
David Lepofsky, 1995 recipient of the Order of Canada who practiced as an attorney from 1982 to 2015 and is a prominent advocate for people with disabilities, said that attorneys as service providers have a positive obligation to admit people with disabilities under the Charter of Human Rights legislation and in Ontario under the Accessibility for People with Disabilities Act (AODA).
Lepofsky is also chair of the Toronto-based AODA Alliance, an advocacy group for consumers with disabilities, associate professor in the law school at the University of Toronto, and visiting professor at York University’s Osgoode Hall Law School.
“Look around legal services providers and see if you can identify the barriers that might handicap people with disabilities, such as those with vision loss, and try to find ways to fight them off before they do Enter “, he recommended the webinar to 90 participants.
“But the other thing to do is create a welcoming environment,” he added. “We don’t expect you to be visionaries and know every single barrier. But you can solve pretty much anything by simply creating a welcoming environment where customers, colleagues, and employees can ask for accommodation. “
This welcome message can be delivered the first time you meet customers, in retention agreements, website announcements, and even on your answering machine. “Just say if you have a disability, let us know what your accommodation needs are, and we’d like to do our best to accommodate you effectively,” advised Lepofsky.
When sharing documents, he suggested, placement can start simply by avoiding the use of PDFs, which use an inaccessible format, and providing copies in more accessible formats such as Word.
“PDFs can cause huge accessibility issues,” he said. “The first time you create the document in Word, it will be accessible. It’s completely accessible. And if you email it to either of us, we can read it right away. If you convert it to a PDF file, you destroy that accessibility. “
Kelly Serbu, Serbu Limited Law Firm
Attorney Kelly Serbu, the founder of Halifax-based Serbu Law Firm Limited, who describes himself as visually impaired, said he was unwilling to disclose his visual impairment when he started practicing as a criminal defense attorney in 1997, partly because he did not want potential clients believe that this would be an obstacle to effective representation.
But he advised young lawyers who are going to court today with vision loss or other disabilities not to be intimidated and to advocate suitable housing.
“Make sure,” he urged her, “that you have the confidence to say,” No this is not acceptable, that it should be made available in a timely manner and I am not pressured to go through the process, when I don’t feel prepared ‘”
In those early years, Serbu said, his greatest challenge was accessing information in documents, especially police handwritten notes.
“It was these briefs that came up when you went to court without knowing who had been arrested the night before and in the hope that the narrative wasn’t too much and that I could get through it,” he recalled. “I had no one to read it to me, so I had a small optical palm reader that could enlarge the print, or I went into the Krone’s office and zoomed in on the photocopier and blew everything up in the air as big as I could have multiple sides so I could get through. “
Today, according to Serbu, technology has improved and even cell phones can read Word documents – although Nova Scotia’s transition to electronic disclosure poses some problems, with information sometimes being provided in inaccessible formats. However, the party disclosing the information is required to provide it in an accessible manner, he added.
Panelist Rhonda Underhill-Gray, project leader for the CNIB Foundation Ontario South, emphasized the importance of using the correct terminology for people with vision loss.
“My first advice would be to ask her,” she recommended. “It is important that you have the terminology that you are comfortable using. However, when someone describes themselves as someone with a visual impairment or as visually impaired, this is the terminology you want to use. “
The old term “legally blind” is out of date, Underhill-Gray said. Vision loss comes in many forms and for various reasons at different stages of life, and people with vision loss encounter many obstacles. “It is very, very important,” she added, “to check our assumptions and get the facts. Ask as many questions as you need. “
Panellists highlighted some of the resources available to assist lawyers in Ontario with helping clients with vision loss or lawyers who have vision loss themselves. The Law Society of Ontario has created a series of webinars designed to help attorneys accommodate people with various disabilities in their practice and in court. You are entitled to further training points. Lepofsky also directed participants to the 2006 report by Retired Ontario Court of Appeal, Karen Weiler, on Full Accessibility of the Ontario Courts, available on the Ontario Courts’ website. He added that every judicial facility in Ontario should have an accessibility coordinator who can help with accessibility issues. Information can also be found on the AODA Alliance website.
Moderator Shannon Kinch, project leader of the Know Your Rights program at the CNIB Foundation Ontario, also noted that the Arch Disability Law Center offers a free case consultation service to lawyers representing people with disabilities.
During the panel discussion, Kinch asked Mitschele how, as Crown Attorney, he would react to a hypothetical situation where a complainant is summoned to testify who has multiple disabilities, including hearing loss, vision loss, and anxiety disorder. The complainant asked for transcription services and the presence of a support person both for the preparatory meetings and for the appearance of the court.
If the complainant were a customer, Mitschele said, under the Ontario Human Rights Code (OHRC), as a paid service provider, he would have a duty to house that person to a point of undue hardship, which is a high bar. He would also need the complainant’s written consent to bring the supportive person into the privilege and confidentiality circle.
If the person were a witness, he said, the OHRC might not apply, but it would be required to admit that person under the rules of professional conduct and probably the AODA.
“I think as crown attorneys we have to maintain a very high standard,” he said. “And of course it is in my best interest to make sure that this person is on trial and testifying effectively if it is someone I am summoning on my case.”
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