New Law Library of Congress Report on Access to Information for Persons with Disabilities

The Law Library of Congress in Washington has recently published a report on Access to Information for Persons with Disabilities in Selected Jurisdictions:

"This multinational report covers the right of access to information for persons with disabilities in the selected jurisdictions of Brazil, Canada, China, Colombia, the Democratic Republic of the Congo, Denmark, Egypt, El Salvador, England, France, Germany, India, Israel, Italy, Japan, Kenya, Malta, New Zealand, Norway, Portugal, Russia, Saint Vincent and the Grenadines, Saudi Arabia, South Korea, Spain, Switzerland, and Taiwan."

(...)

"This report surveys how the rights of persons with disabilities are protected, notably, if a jurisdiction’s constitution (written or unwritten) specifically protects persons with disabilities. It describes the rights to information, in particular legal information, access to justice, and culture, and includes current legislative proposals as they concern persons with disabilities. The report also surveys which jurisdictions offer publicly funded libraries that specifically serve the blind and visually impaired. The report does not comprehensibly address legislation on other issues related to persons with disabilities, including the right to work and antidiscrimination legislation."

The Law Library of Congress is the world’s largest law library, with a collection of over 2 and a half million volumes from all ages of history and virtually every jurisdiction in the world.

Over the years, it has published dozens of comparative law reports which are a treasure trove for legal research on a huge variety of issues.

Canadian Forum on Civil Justice Winter 2022 Newsletter

The non-profit Canadian Forum on Access to Justice (CFCJ) publishes a regular newsletter on access to justice issues.

The latest issue includes news about:

• an upcoming Indigenous Access to Civil Justice Conference
• a new project about access to justice via administrative tribunals and panels
• the Accessibility for Ontarians with Disabilities Act
• and more

The CFCJ is a national non-profit organization that works to advance civil justice reform through research and advocacy. 

Canadian Association of Law Libraries Webinar on Law and Disability in Canada

The Canadian Association of Law Libraries (CALL) is organizing a webinar on Tuesday, June 28 at 1:00PM Eastern on Law and Disability in Canada: An overview of law and disability issues in Canada:

"This webinar will explore the ways in which persons with disabilities interact with the law in Canada. This will be done through an examination of barriers regularly faced by people with disabilities and how these are interpreted in foundational domestic and international equality rights instruments (including the Charter, human rights law, and the Convention on the Rights of Persons with Disabilities). The authors will also provide a brief history of disability rights litigation in Canada and discuss several contemporary access to justice issues currently facing people with disabilities."

The speakers are:

• David Ireland, Faculty of Law at the University of Manitoba
• Freya Kodar, University of Victoria Faculty of Law
• Dr. Laverne Jacobs, University of Windsor Faculty of Law
• Dr. Richard Jochelson, Dean of Law at the University of Manitoba

Registration is free for CALL members, $50 for non-members and $15 for student non-members.

New Issue of Information Technology and Libraries Available Online

The most recent issue of the quarterly journal Information Technology and Libraries is now available online.

Among the feature articles that caught my attention are:

• Expanding and Improving Our Library’s Virtual Chat Service - Discovering Best Practices when Demand Increases: "With the onset of the COVID-19 pandemic and the ensuing shutdown of the library building for several months, there was a sudden need to adjust how the Hilton C. Buley Library at Southern Connecticut State University (SCSU) delivered its services. Overnight, the library’s virtual chat service went from a convenient way to reach a librarian to the primary method by which library patrons contacted the library for help. In this article, the authors will discuss what was learned during this time and how the service has been adjusted to meet user needs. Best practices and future improvements will be discussed."
• Building a Culture of Resilience in Libraries (Editorial): "We find ourselves a year and a half into the global pandemic, and libraries—just like the rest of the workforce—have been navigating through a drastic amount of change in a short amount of time with no real guideposts as to what may come next. Libraries were completely shut down, library staff displaced, and library services transformed in a short period of time like they hadn’t been before. We’ve also found that as we’ve reopened our libraries there are new patron and staff expectations. It is expected that the changes that we’ve enacted in the middle of a crisis will continue and will be folded into a new service delivery model. Patrons have different expectations of libraries; library staff have different expectations of management and of the technology that drives library services and their day-to-day work. In order to meet these new expectations, we’ve embarked on a path of implementing more flexibility into our environments and workflows. I feel however that the concept of flexibility misses the mark. Flexibility is about being open to change and reacting to it, and possibly taking different paths to solving a common problem. Flexibility though is part of a broader concept that I think we need to embrace, and that is resiliency."
• Accessibility of Tables in PDF Documents: " The retrieval of important units such as images, figures, algorithms, mathematical formulas, and tables becomes a challenge. Among these elements, tables are particularly important because they can add value to the resource description, discovery, and accessibility of documents not only on the web but also in libraries if they are made retrievable and presentable to readers. Sighted users comprehend tables for sense making using visual cues, but blind and visually impaired users must rely on assistive technologies, including text-to-speech and screen readers, to comprehend tables. However, these technologies do not pay sufficient attention to tables in order to effectively present tables to visually impaired individuals. Therefore, ways must be found to make tables in PDF documents not only retrievable but also comprehensible. Before developing such solutions, it is necessary to review the available assistive technologies, tools, and frameworks for their capabilities, strengths, and limitations from the comprehension perspective of blind and visually impaired people, along with suitable environments like digital libraries. We found no such review article that critically and analytically presents and evaluates these technologies. To fill this gap in the literature, this review paper reports on the current state of the accessibility of PDF documents, digital libraries, assistive technologies, tools, and frameworks that make PDF tables comprehensible and accessible to blind and visually impaired people."

Annotated Accessible Canada Act Made Available on CanLII

The Annotated Accessible Canada Act created by the Faculty of Law at the University of Windsor had been added to the ever growing collection of legal commentary available on the website of the Canadian Legal Information Institute (CanLII).

As the authors explain:

"This is a reprinted and annotated version of the Accessible Canada Act put together by the Law Disability & Social Change Project for educational and informational purposes only. The information provided in this document does not, and is not intended to, constitute legal advice."

"While we have provided examples of possible litigation throughout this annotated statute, the examples are based on our opinions only. The Accessible Canada Act (ACA) has been in effect only since 2019 and it is necessary to wait for it to be interpreted and applied in order to have actual cases from which to draw guiding legal principles."

"More generally, the views expressed in this publication are those of the authors, and, in particular, do not represent the views or the positions of the Department of Justice Canada, or those of the Government of Canada."

Victoria Law Reform Commission Consultation on Jurors who are Deaf, Hard of Hearing, Blind or Have Low Vision

The Victoria Law Reform Commission is conducting a public consultation on more inclusive juries. 

The Commission wants to find out what reforms are needed to improve access for people who are deaf, hard of hearing, blind or have low vision who wish to serve as jurors in the state of Victoria.

It issued a consultation paper in December 2020 and will be gathering input until the end of February.

From the terms of reference:

"The Juries Act 2000 (Vic) provides a list of people who are ineligible to serve as jurors. Among those excluded are persons with ‘a physical disability that renders [them] incapable of performing the duties of jury service’, and those who are ‘unable to communicate in or understand the English language adequately’."

"Although people who are deaf, hard or hearing, blind or have low vision are not expressly precluded from jury service, prohibitions on allowing interpreters or communication assistants into the jury room mean that, for many, such service would not be possible."

"The project will examine the current legal framework to consider whether legislative change is required, what practical supports would be necessary, and whether there are specific circumstances in which such jury service should be limited. In conducting this review, the Commission will have regard to: 

• Relevant legal and practice developments in domestic and international jurisdictions. 
• Current practice and statistics in Victoria relating to excusal and disqualification of people who are deaf, hard or hearing, blind or have low vision as jurors. 
• The common law rule prohibiting any non-jurors from being present in jury deliberations (the ‘thirteenth person’ rule). 
• The interaction with discrimination law and human rights in Victoria. 
• The interaction with peremptory challenges and crown stand-asides. 
• The resourcing and training implications for court and jury offices staff and judicial officers. 
• The importance of a fair trial and confidence in the jury system."

Appendix B of the consultation paper provides information about the experience of many other jurisdictions. Those jurisdictions include New Zealand, England and Wales, Scotland, Ireland, the United States, and Canada.

The state of Victoria is in south-eastern Australia and its capital is Melbourne.

Accessibility Toolkit for Library Programs and Meetings on Virtual Platforms

The Association of Specialized Government and Cooperative Library Agencies, a division of the American Library Association, recently published a toolkit on virtual accessibility:

"Beginning in spring 2020, the number of libraries offering live meetings and programs through online virtual platforms has increased tremendously. It is essential to ensure that library events are welcoming and accessible for everyone who is interested in participating or learning with others in their communities. When online programs and classes are planned with accessibility in mind, it is possible for many people who have previously found barriers to enjoy and benefit from the opportunities their libraries provide."

There are tips for:

• Video Meetings and Presentations
• Webinars
• Group Discussions
• Accessible Documents

COVID-19 Pandemic and Rights of Persons with Disabilities

The Library of Parliament has published an analysis of The COVID-19 Pandemic and Rights of Persons with Disabilities:

"The COVID-19 pandemic presents multiple risks to the rights and wellbeing of persons with disabilities."

"Approximately 6.2 million Canadians over the age of 15 live with one or more disabilities. Although definitions vary, the Accessible Canada Act indicates that a disability exists when a person’s impairments interact with barriers in a way that hinders full and equal participation in society."

"Persons with disabilities are a diverse group with a wide range of abilities and needs. The United Nations Convention on the Rights of Persons with Disabilities (the Convention) – which Canada ratified in 2010 – guarantees their enjoyment of such rights as those to 'full and effective participation and inclusion in society' and to 'the highest attainable standard of health without discrimination.' In situations of risk, member states also have an obligation under Article 11 of the Convention to take 'all necessary measures to ensure the protection and safety of persons with disabilities'."

"These and other rights found in the Convention and in domestic human rights laws are threatened by the pandemic in several ways. This HillNote outlines some of the challenges facing persons with disabilities in Canada during the pandemic, and the potential impact on the health-related and inclusion-related rights of such persons. It will also highlight some positive measures that have been identified both in Canada and internationally to help fulfill state obligations, including Canada’s COVID-19 Disability Advisory Group."

Implementing the Marrakesh Treaty for Persons with Print Disabilities: A Guide for Canadian Librarians

The Canadian Federation of Library Associations (CFLA) has released a Canadian version of  Getting Started with the Marrakesh Treaty – a Guide for Librarians.

The original version was published in 2019 by the International Federation of Library Associations and Institutions (IFLA).

From the forward by Canadian library director Victoria Owen:

"The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled presents an unprecedented opportunity for access to printed works for blind and other print-handicapped persons. Libraries play a key role in facilitating access, and this guide was conceived to enable staff in libraries of all types to take the final, practical steps to deliver materials into the hands of print-disabled readers."

"As the former director of library services at Canada’s CNIB Library for the Blind and past chair of the International Federation of Library Associations and Institutes (IFLA)’s Copyright and other Legal Matters (CLM) Advisory Committee, I am especially pleased to see that the Marrakesh Treaty enables improved access to printed works and that the beneficiaries include blind and low-vision readers."

"The information in this guide is organized as an FAQ (Frequently Asked Questions), answering questions and providing links for further information. It is meant to be a starting point, a template, available for customization in each Marrakesh Treaty country. It is our hope that, once the guide is customized to each country’s law, it will be posted on the IFLA website."

Library-Related Highlights from the 2019 Federal Budget

The website Librarianship.ca has published the highlights from yesterday's federal budget that may be "of interest to the Canadian library and information management community".

They include items relating to access to information, accessibility for Canadians with disabilities, the development of better data for decision-making, digital services and digital skills, higher education, infrastructure spending, high-speed Internet access, measures to support journalism, help for Northern communities, progress on reconciliation with Indigenous Canadians, scientific research, seniors, and training.

Recent Library of Parliament Legislative Summaries

There are quite a few new Library of Parliament legislative summaries for some of the federal bills of the current session.

The summaries contain background and analysis of bills in front of the House of Commons and the Senate.

It is possible to follow the progress of all bills in Parliament on the LEGISinfo website.

Among the recent summaries are:

• Legislative Summary of Bill C‑75: An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts: "This bill is intended to make the criminal justice system more modern and efficient and to reduce delays in criminal proceedings. The proposed amendments are in response to the Supreme Court of Canada rulings in R. v. Jordan and R. v. Cody, and to the final report of the Standing Senate Committee on Legal and Constitutional Affairs, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada."
• Legislative Summary of Bill C-71: An Act to amend certain Acts and Regulations in relation to firearms: "Bill C‑71 received second reading and was referred to the House of Commons Standing Committee on Public Safety and National Security (SECU) on 28 March 2018. SECU reported the bill with amendments on 12 June 2018 and the House of Commons concurred in that report on 20 June 2018. The bill received third reading in that Chamber on 24 September 2018 and was introduced in the Senate on 25 September 2018. The bill was read a second time and referred to the Standing Senate Committee on National Security and Defence on 11 December 2018. SECU amended the bill to, among other things, clarify for greater certainty that nothing in the Act shall be construed so as to permit or require the registration of non‑restricted firearms (new section 2(4) of the Firearms Act); prescribe new factors to be considered by the judge or the chief firearms officer (CFO) when determining an applicant’s eligibility to hold a firearms licence (amended section 5(2)(c) and new sections 5(2)(d) to 5(2)(f) of the Firearms Act); and specify that the terms “threatened violence” and “threatening conduct” include threats or conduct communicated to a person by means of the Internet or other digital network when determining an applicant’s eligibility to hold a firearms licence (new section 5(2.1) of the Firearms Act)."
• Legislative Summary of Bill C-81: An Act to ensure a barrier-free Canada: "As indicated by its short title, the bill enacts the Accessible Canada Act, with the stated objective of enhancing the 'full and equal' participation of all Canadians (especially persons with disabilities) in society, through the identification, removal and prevention of barriers in areas under federal jurisdiction."
• Legislative Summary of Bill C-51: An Act to amend the Criminal Code and the Department of Justice Act and to make consequential amendments to another Act: "First, the bill amends the Criminal Code (Code) to modify or repeal provisions that have been ruled unconstitutional by the courts or that raise risks of being contrary to the provisions of the Canadian Charter of Rights and Freedoms (Charter). It also amends or repeals Code provisions that could be considered obsolete and/or redundant. Second, Bill C‑51 amends provisions in the Code relating to sexual offences. In particular, it sets out a procedure for determining the admissibility and use of the complainant’s records when they are in the possession of the accused. Finally, Bill C‑51 amends the Department of Justice Act to require that the Minister of Justice table a statement of a bill’s potential effects on the rights and freedoms guaranteed by the Charter for every government bill introduced in either House of Parliament."
• Legislative Summary of Bill C-84: An Act to amend the Criminal Code (bestiality and animal fighting):"Bill C‑84 amends the Criminal Code to define 'bestiality.' Although section 160 of the Criminal Code criminalizes bestiality, it does not include any definition of the term. The Supreme Court of Canada considered which acts are prohibited by this offence in its R. v. D.L.W. decision in 2016. The Court determined that the term 'bestiality' has a 'well‑established legal meaning and refers to sexual intercourse between a human and an animal' and stated that sexual penetration 'has always been understood to be an essential element' of the term. The court noted that it was not its role to expand upon this accepted meaning, but rather that it would be up to Parliament to 'broaden the scope of liability' for the offence by introducing an express provision in the Criminal Code."
• Legislative Summary of Bill C-87: An Act respecting the reduction of poverty: "The bill enacts the Poverty Reduction Act (the Act), which provides targets for poverty reduction to be achieved by 2020 and by 2030, sets out Canada’s Official Poverty Line and other metrics to measure poverty, and establishes the National Advisory Council on Poverty."

Report on Ratification of Marrakesh Treaty for People With Print Disabilities

The International Federation of Library Associations and Institutions (IFLA) has published an update to its Marrakesh Monitoring Report:

"The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled marks a major victory in efforts to provide equitable access to information for all. For the 300 million people with print disabilities around the world, it promsies to be a life-changer."

"By removing the obligation to seek permission to make or share copies of books in accessible formats, it takes away an important barrier to providing books to people with print disabilities."

"Nonetheless, there are possibilities for Member States to (re)introduce obligations to pay rightholders or undertake other bureaucratic burdens. Governments can also do more or less to favour access to people with other disabilities (such as people experiencing deafness)."

"IFLA is therefore periodically reviewing whether governments have passed the necessary national laws to make a reality of Marrakesh, and if so, whether they are maximising the potential for access,"

Canada has ratified the treaty.

In 2018, IFLA prepared a guide for librarians on Getting Started with the Marrakesh Treaty with the support of the World Blind Union, the Canadian Association of Research Libraries, and the University of Toronto.

Library of Parliament Article on Federal Legislation Affecting People with Disabilities

The Library of Parliament has published an article in its HillNotes blog entitled Federal Legislation affecting People with Disabilities: Where We Are Today:

"The idea of overarching federal accessibility legislation has garnered attention for decades. Many voices, including a parliamentary committee, a federal task force, and advocates have called for legislative action to remove barriers to full participation and ensure the equality of people with disabilities (...)"

"Following a commitment made in Budget 2016, the federal government launched a consultation process with Canadians to 'inform the development of planned legislation that will transform how the Government of Canada addresses accessibility'. "

"Bill C-81, An Act to ensure a barrier-free Canada (short title: Accessible Canada Act), was introduced in the House of Commons on 20 June 2018 by the Honourable Kirsty Duncan, then Minister of Science and Minister of Sport and Persons with Disabilities. Among other aspects, as indicated by its title, Bill C-81 would enact the Accessible Canada Act, with the stated objective of enhancing the 'full and equal' participation of all Canadians, especially persons with disabilities, in society. "

"The introduction of federal accessibility legislation is expected to benefit not only people with disabilities but also their caregivers. In a society where approximately 6.2 million Canadians aged 15 years or older have reported living with disabilities that limited their daily activities, any legislative reform is likely to have a major impact from coast to coast to coast."

New Guide on Marrakesh Treaty for People With Print Disabilities

The International Federation of Library Associations and Institutions (IFLA) has published a guide for librarians on Getting Started with the Marrakesh Treaty:

"The Marrakesh Treaty entered into force in September 2016, faster than any other international copyright text in the last 40 years. It promises to remove some of the key barriers to access to information by people with print disabilities."

"Yet the Treaty will only be effective, where it has been incorporated into national law, when libraries and others are using it. Yet not all librarians feel confident in dealing with copyright law, potentially leaving users without the access they need."

"This guide, edited by Victoria Owen, and with the wecome support of the World Blind Union, the Canadian Association of Research LIbraries, and the Unviersity of Toronto, offers answers to frequently asked questions. It can also be adapted by national actors to their own laws - IFLA encourages this, in order to get the largest possible number of libraries involved."

Recent Research Publications from Canada's Library of Parliament

The Library of Parliament has published a number of interesting research publications recently:

• Hate Speech and Freedom of Expression: Legal Boundaries in Canada: "This paper explores the different types of restrictions that have been used in Canada to address the promotion of hatred and other related and potentially harmful forms of expression, such as the glorification of terrorism or the display of an intent to discriminate. It includes information on other ways in which crimes motivated by hatred are addressed in the criminal sentencing process and are tracked by law enforcement agencies. It also reviews some aspects of the debate surrounding ways to address hate propaganda."
• The Role of Parliamentary Secretaries: An Overview: "Parliamentary secretaries are members of Parliament from the governing party who are appointed by the prime minister to assist Cabinet ministers with their parliamentary duties. Under the direction of these ministers, parliamentary secretaries handle routine matters in the House of Commons, engage in committee work as non‑voting members, and assume some extra‑parliamentary responsibilities. Thus, parliamentary secretaries act as a link between ministers and other parliamentarians. Some may be given special assignments as well. Moreover, the office can serve as a training ground for future ministers or as a way of rewarding members of the government caucus. This provides an overview of the role of parliamentary secretaries and how this office has changed over time." 
• Taxation and Regulation of Digital Currencies: "Some believe that one day, digital currencies might replace a significant portion of currencies that governments have declared to be legal tender in their country, avoiding regulatory oversight and control. Therefore, the challenge for governments and regulators is to develop a regulatory environment for digital currencies and fintechs that fosters responsible development of these technologies, while protecting consumers, investors, businesses and the financial system. In Canada, legislation and/or regulations related to digital currencies exist with respect to taxation, money laundering and terrorist financing, securities and other financial regulations that affect fintechs."
• Federal Legislation affecting People with Disabilities: Where We Are Today:"While there is currently no overarching federal disability legislation in Canada, the idea has garnered attention for decades. Many voices, including a parliamentary committee, a federal task force, and advocates have called for legislative action to remove barriers to full participation and ensure the equality of people with disabilities (...) The introduction of federal accessibility legislation ('An Act to ensure a barrier-free Canada') is expected to benefit not only people with disabilities but also their caregivers. In a society where approximately 3.8 million Canadians aged 15 years or older have reported living with disabilities that limited their daily activities, any legislative reform is likely to have a major impact from coast to coast to coast."

Statistics Canada Article on Violent Victimization of Women with Disabilities

Last week, the Statistics Canada publication Juristat published an article on Violent victimization of women with disabilities, 2014 that shows that persons with a disability were overrepresented as victims of violent crime.

Among the highlights:

• According to the 2014 General Social Survey on Victimization, women with a disability were twice as likely as women who did not have a disability to have been a victim of violent crime. A similar trend was evident among men.
• Women with a disability were nearly twice as likely as women without a disability to have been sexually assaulted in the past 12 months.
• Among victims of violent crime, women with a disability were almost twice as likely as women without one to have been victimized more than once in the 12 months preceding the survey (36% versus 20%).
• The rate of violent victimization among women and men with a cognitive disability or a mental health‑related disability was approximately four times higher than among those who did not have a disability. Among women and men with a sensory or physical disability, the rate of violent victimization was roughly twice as high as among those who did not have a disability.
• Victims of violent crime who had a disability were more likely to make use of victims' services. Six in ten (61%) victims of violent crime who turned to formal support services in 2014 had a disability. Women with a disability were more likely than their male counterparts to contact or use any services.
• Canadians with a disability were more likely to be victimized in their own home, as close to one‑third (30%) of violent incidents against a person with a disability occurred in their private residence (compared to 17% of incidents where the victim did not have a disability).
• Four in ten (40%) Canadians with a disability at the time of the survey were physically and/or sexually abused during their childhood, compared to about one‑quarter (27%) of those who did not have a disability.
• About one‑quarter of women with a cognitive disability (24%) or a mental health‑related disability (26%) were sexually abused by an adult before they were 15 years of age.
• Among victims of spousal violence with a disability, women were more likely than men to have experienced the most serious forms of spousal violence (39% versus 16%), to be physically injured due to the violence (46% versus 29%), to fear for their life (38% versus 14%), and to contact or use formal support services following the violence (71% versus 29%).

Alberta Law Reform Institute Report on Inter-provincial Recognition of Substitute Decision-Making Documents

In December 2017, the Alberta Law Reform Institute (ALRI) released a report for discussion on Inter-provincial Recognition of Substitute Decision-Making Documents.

Substitute decision-making documents (also called powers of attorney, proxies, personal directives, etc...) delegate authority to one person to act on behalf of another with respect to financial, property or legal affairs and/or personal or health care matters. But legal requirements can often differ in different jurisdictions so that documents may not be recognized outside the province in which it was made, a situation that can create problems for people who own assets in more than one jurisdiction.

In 2016, the Uniform Law Conference of Canada approved the Uniform Interjurisdictional Recognition of Substitute Decision-Making Documents Act. The Uniform Act is intended to provide harmonized rules that may be implemented across Canada.

The ALRI report reviews the Uniform Act and considers whether it is suitable for implementation in Alberta. ALRI proposes that the Uniform Act should be implemented in Alberta, with some minor adjustments.

Law Commission of Ontario Final Report on Legal Capacity, Decision-Making and Guardianship

The Law Commission of Ontario (LCO) has released its Final Report on Legal Capacity, Decision-making and Guardianship.

From the Executive Summary:

"Legal capacity, decision-making and guardianship laws affect thousands of Ontarians and their families every day. Most obviously, these laws affect the approximately 17,000 Ontarians who are currently subject to some kind of a guardianship order or the thousands of others whose capacity is assessed as part of obtaining consent to health care treatments, for admission to residency to a long term care home, or as part of the provision of many other services. In addition, every Ontarian who has ever granted or been given a power of attorney is affected by this area of law (...)"

"Does the System Reflect Contemporary Needs?
Over the years, Ontarians have developed increasingly nuanced and sensitive understandings of the needs and capabilities of the individuals, families, and others affected by these laws. The Final Report considers whether the system in Ontario reflects and responds to these understandings. The LCO considers needs from multiple perspectives, including persons directly affected, families, service providers and professionals, and others. The LCO also considers needs in light of demographic and social trends, changing family structures, and Ontario’s cultural and linguistic diversity."

"Is the System Working on the Ground?
The LCO’s Final Report discusses the legislative framework and objectives of Ontario’s capacity, decision-making and guardianship system at length. The Final Report considers whether Ontario achieves these objectives in practice. In other words, the project considers whether there is gap between the formal law – as expressed in statutes – and lived experience of the legislation. Understanding and addressing the “implementation gap” is an important theme in the Final Report."

"Are the System’s Legal Protections Adequate and Accessible?
Meaningful access to justice underpins the entire legal capacity, decision-making and guardianship system. Effective and appropriate mechanisms for dispute resolution and rights enforcement are therefore a priority in the Final Report."

The report makes a number of proposals that would reduce abuse of vulnerable individuals, including elder abuse and reduce misuse and abuse of powers of attorney though better education, transparency and monitoring. 

Law Commission of Ontario Releases Interim Report on Legal Capacity, Decision-making and Guardianship

This is a follow-up to the Library Boy post of June 26, 2014 entitled Law Commission of Ontario Discussion Paper on Legal Capacity, Decision-making and Guardianship.

Earlier this week, the Commission released its Interim Report on Legal Capacity, Decision-making and Guardianship.

The Commission is looking for feedback from the public by March 4, 2016 as part of its consultation process.

The report is one of the elements of a major project to look at how decisions related to property, treatment and personal care are made in situations where individuals’ decision-making abilities are in impaired, but decisions must nonetheless be made.

Related posts on Library Boy include:

• British Columbia Law Institute Consultation Paper on Common-Law Tests of Capacity (February 26, 2013)
• Australian Law Reform Commission Paper on Equality, Capacity and Disability in Commonwealth Laws (November 17, 2013)
• Law Commission of Ontario Discussion Paper on Capacity of Adults with Mental Disabilities and the Registered Disability Savings Plan (December 8, 2013)
• Law Commission of Ontario Papers on Legal Capacity, Decision-Making and Guardianship (March 25, 2014) 
• Alberta Law Reform Institute Report on Beneficiary Designation by Substitute Decision Makers (April 22, 2014)

English Law Commission Consultation on Mental Capacity and Deprivation of Liberty

The Law Commission of England has launched a consultation on the law of mental capacity and deprivation of liberty that will continue until November 2015: 

"The Deprivation of Liberty Safeguards (DoLS) aim to protect people who lack mental capacity, but who need to be deprived of liberty so they can be given care and treatment in a hospital or care home. If a person’s right to liberty needs to be infringed in other settings, an authorisation must be obtained from the Court of Protection."

"The DoLS have been criticised since they were introduced for being overly complex and excessively bureaucratic. In March 2014, a House of Lords Select Committee published a detailed report concluding that the DoLS were 'not fit for purpose' and recommended that they be replaced. At the same time, a case in the United Kingdom Supreme Court held that far greater numbers of people fell to be dealt with under the DoLS system than had previously been thought. This has placed increasing burdens on local authorities and health and social care practitioners administering the DoLS."

"Our consultation paper concludes that the DoLS are ‘deeply flawed’. We provisionally propose that they be replaced with a new system, to be called ‘Protective Care’. This system is not focused on authorising deprivations of liberty, but instead upon providing appropriate care and better outcomes for people who lack mental capacity and helping their family and carers."

The consultation paper is available on the Commission website.

The Commission expects to produce a final report with recommendations and a draft Bill in 2016.