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l’azile » amended judgment in the Jodhan case

February 28, 2011

amended judgment in the Jodhan case

catherine @ 3:24 am

Disclaimer: Any views expressed in the following article are my own and, as far as I know, do not necessarily reflect the views of the organizations I am affiliated with.

If you blinked, you may have missed the amended judgment in the Jodhan case, rendered February 09 2011 following the Government of Canada’s motion for reconsideration filed last December. That motion came shortly after the initial ruling in the case which awarded victory to Ms. Donna Jodhan, a blind woman who sued the government for the lack of accessibility of federal government websites.

The November 29 2010 ruling stipulated, among other things, that the Government of Canada had indeed violated Ms. Jodhan’s Charter rights by failing to monitor the application of its own web standards, the Common Look and Feel standards (CLF), which contain a number of accessibility requirements to ensure “equitable access to all content on Government of Canada websites“. The ruling also declared that the government has a constitutional obligation to bring itself into compliance with the Charter within 15 months.

On December 08, the government filed a motion for reconsideration, alleging technical errors on the part of Justice Kelen. For more background on the federal government’s motion, you can read my in-depth analysis written last January. But, to make a long story short, here follow the amendments that were being sought by the federal government to the November 29 judgment:

THE MOTION IS FOR reconsideration of the Judgment of Justice Kelen, dated November 29, 2010, and for the issuance of the amended Judgment:

a) amending the first sentence of paragraph 2 of the Judgment to replace the number of departments listed as 146, with the correct number of 106, such that it would now read: “It is also declared that the applicant’s inability to access online certain departmental websites is representative of a system wide failure by many of the 106 government department and agencies to make their websites accessible.” (the amended number sought is bolded);

b) amending the Judgment to address two accidental slips relating to the Applicant’s requests for relief, namely:

i) the omission of a provision to make an exception for “stored content”, which could be remedied by inclusion of the relief sought by the Applicant for a declaration that “in the case of stored content, the GC shall provide such content in an accessible format upon request (stored content refers to information that is stored in a database and is retrieved or displayed upon request by a user”; and

ii) the inclusion of declaratory relief relating to the alleged “failure of the government to monitor and ensure compliance” standards notwithstanding the withdrawal of the Applicant’s request for this relief, which could be remedied by deletion of the second sentence of paragraph 2 of the Judgment;

c) such further and other relief as counsel may advise and this Honourable Court permit.

As I stated in my January 01 post, two of these requests, regarding what the government claimed were “accidental slips” on Justice Kelen’s part, are important, i.e. the question of “stored content” and the alleged “failure of the government to monitor and ensure compliance”.

So what did Justice Kelen think?

Well, as could be expected, the number of listed departments was amended to 106 (see paragraph 5, among others, and article 2 of the amended judgment[1]) instead of the 146 originally stipulated. This can be considered a minor technicality, although, as I pondered in my January 01 post, I do wonder about who is excluded from the standard and why. But I guess that is a subject for another time.

The amended judgment does not back down on accountability: the government’s request to delete reference to any failure to monitor and ensure compliance to its own standard is rejected. I hear Justice Kelen gave the government representatives “a good tongue lashing” regarding this requested amendment. In any case, you could say Kelen had no choice to uphold this part of his ruling. If not, the rest would not make sense.

As for the issue of “stored content”, the amended judgment states at the end of article 2:

This declaration does not apply to stored government historical and/or archived information which is stored in a database and which the government shall retrieve and provide in an accessible format upon request.

This is a foreseeable compromise in that the judgment makes an exception while attempting to limit the scope of that exception. Instead of excluding the vague notion of “stored content”, such as requested by the government, Justice Kelen specifies “historical and/or archived information”. Nice try. But this too could mean just about anything. Which brings me back to my initial concern…

Who gets to decide?

Who gets to decide what “historical and/or archived information” means? Because this concession necessarily will require a definition, a cut-off date, etc. And I think people with disabilities, through their representative organizations, need to contribute to that decision.

Also, concerning the obligation to “provide [information] in an accessible format upon request”, how would that be handled? Will the user have a choice with regards to that format? Can a user ask for the “accessibilization” of the original resource, i.e. making the web page or application itself accessible, or will she only have access to accessible alternatives?

And will the fact that someone, for example, asks for large print or Braille or a MSWord file preclude that electronic information from ever being CLF compliant? And in all cases, what will be the permissible delays for providing an “accessible format”? Again, people with disabilities need to contribute to the necessary policy tools that would be required to make this work.

Anyway, all is not said and done. Although the amended judgment could be considered a toss-up, kind of, there is the not so small matter of an appeal on the books (for more information about the appeal, see my January 18 post). That chapter in this seemingly never-ending saga is scheduled for this coming April.

Now, if I were the Government of Canada, I would stop wasting everybody’s time and money and drop the appeal. If the results of the motion for reconsideration are any indication, this is as good as it will get.

So Ottawa should make a plan and get on with it. Because in about 12 months, when Justice Kelen asks “what have you been up to lately?”, it would be preferable to have something other to say than “we have been busy fighting your ruling”.

[1] Is it a paragraph and an article? Or the other way around? Perhaps they are both articles? Both paragraphs? Something else entirely? I am not a lawyer so I have no idea. Though I imagine I am probably in flagrant violation of some legal case citation rule or other. I ask for your indulgence.

1 Comment »

  1. Thanks for keeping folks up to date on this important issue.

    Comment by Jeff Braybrook — February 28, 2011 @ 10:04 pm

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