Focus On

Pandemic presents new challenges for lawyers, clients with sight loss, says panel

Monday, January 25, 2021 @ 12:07 PM | By John Schofield

For lawyer Jason Mitschele, the courtroom is a place of justice and, at times, a place of peril. In some respects, the pandemic has only elevated the risk for the Toronto-based Crown attorney, who is blind.

Even before COVID-19, many courthouses — with their stairs, narrow doorways and limited space — were already difficult to access for lawyers and clients experiencing sight loss and other disabilities, said Mitschele, who has worked for the Public Prosecution Service of Canada (PPSC) for the past 17 years. In 2019, the PPSC’s Federal-Provincial-Territorial Heads of Prosecutions Committee presented Mitschele with its annual Courage and Perseverance Award.

But amid the pandemic, he said hybrid court proceedings held before Toronto’s lockdown that combined remote appearances with in-person courtroom attendance were sometimes difficult for him and his guide dog.

“Going to court now in this COVID era having sight loss is very challenging,” he told attendees at a recent Ontario Bar Association webinar titled Ensuring Effective Participation in the Justice System for Individuals Experiencing Sight Loss.

“There’s plexiglass, there’s wires, and perhaps there are places you’re supposed to socially distance, where you can’t tell,” said Mitschele. “I can’t always tell if someone is six feet away from me or not, and guide dogs aren’t trained to stay six feet away from people, so it’s hard to know if you’re social distancing.”

For some people with disabilities, the advent of virtual hearings has been easier “because you’re not out there in the world trying to make your way in 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 things not seeing on Zoom.”

The panel during the Dec. 11 professional development event included two other lawyers experiencing sight loss.

 David Lepofsky, chair of the AODA Alliance, adjunct professor at the University of Toronto Faculty of Law and a visiting professor at Osgoode Hall Law School

David Lepofsky, chair of the AODA Alliance, adjunct professor at the University of Toronto Faculty of Law and a visiting professor at Osgoode Hall Law School

David Lepofsky, a 1995 recipient of the Order of Canada who practised law from 1982 to 2015 and a prominent advocate for people with disabilities, said that lawyers, as service providers, have an affirmative duty to accommodate people with disabilities under the Charter, human rights legislation and, in Ontario, under the Accessibility for Ontarians with Disabilities Act (AODA).

Lepofsky is also chair of the Toronto-based AODA Alliance, a disability consumer advocacy group, an adjunct professor at the University of Toronto Faculty of Law and a visiting professor at Osgoode Hall Law School at York University.

“In providing legal services, look around and see if you can identify the barriers that might impede people with disabilities, such as people with vision loss, and try to figure out ways to head them off before they happen,” he recommended to the webinar’s 90 attendees.

“But the other thing to do is to 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 everything by simply creating a welcoming environment in which clients, colleagues, employees can ask to be accommodated.”

That welcoming message can be communicated in the first meeting with clients, in retainer agreements, website announcements and even your phone answering system. “Just say if you have any disabilities, let us know what your accommodation needs are and we’d be happy to do our best to effectively accommodate you,” advised Lepofsky.

When sharing documents, he suggested, accommodation can start simply by avoiding the use of PDFs, which use an inaccessible format, and providing copies in more accessible formats like Word.

“PDFs can create huge accessibility problems,” he said. “When you first create the document in Word, it’s accessible. It’s totally accessible. And if you e-mail it to one of us, we could read it instantly. When you convert it to a PDF, you destroy that accessibility.”

 Kelly Serbu, the founder of Halifax-based Serbu Law Firm Limited

Kelly Serbu, Serbu Law Firm Limited

Lawyer Kelly Serbu, the founder of Halifax-based Serbu Law Firm Limited, who describes himself as partially sighted, said he was reluctant to disclose his visual impairment when he began practising as a criminal defence lawyer in 1997, partly because he didn’t want potential clients to feel it would be a barrier to effective representation.

But he advised young counsel entering the courts today with sight loss or another disability not to feel intimidated and to speak up for appropriate accommodation.

“Make sure,” he urged them, “that you have the confidence to say, ‘No, this is not acceptable, that it should have been provided in a timely fashion, and I’m not going to be pressured into proceeding through the trial if I don’t feel prepared.’ ”

In those early years, said Serbu, his biggest challenge was accessing information in documents, especially handwritten police notes.

“It was those briefs that would show up when you went to court not knowing who got arrested the night before and hoping that there wasn’t too much in the narrative and I could get through it,” he recalled. “I didn’t have someone who could read it to me, so I had a small hand-held optical reader that could magnify the print or I would go into the Crown’s office and use the zoom feature on the photocopiers and blow everything up as large as I could and have multiple pages so I could get through it.”

Today, Serbu said, the technology has improved, and even cellphones can read Word documents — although the transition to electronic disclosure in Nova Scotia has presented some problems, with information sometimes being provided in inaccessible formats. But there is an obligation on the party disclosing the information to provide it in an accessible manner, he added.

Panellist Rhonda Underhill-Gray, a project lead with the CNIB Foundation Ontario South, stressed the importance of using the right terminology for someone experiencing sight loss.

“My first piece of advice would be ask them,” she recommended. “It’s important for you to have the terminology that’s comfortable for them to work with. So if somebody refers to themself as someone with a visual impairment or they’re visually impaired, however they refer to themselves is the terminology that you’re going to want to use.”

The old term “legally blind” is outdated, said Underhill-Gray. Sight loss comes in many forms and from many causes at various stages of life, and people with sight loss encounter many barriers. “It is very, very important,” she added, “to examine our assumptions and to get the facts. Ask as many questions as you need to.”

The panellists highlighted some of the resources available to help Ontario lawyers serve clients with sight loss or for lawyers who have sight loss themselves. The Law Society of Ontario has created a series of webinars, which are designed to help lawyers accommodate people with different disabilities in their practices and in the courts. They are eligible for professional development credit. Lepofsky also referred attendees to the 2006 report by retired Ontario Court of Appeal Justice Karen Weiler on making Ontario’s courts fully accessible, which is available on the Ontario courts website. He added that each court facility in Ontario is supposed to have a court accessibility co-ordinator, who can assist with accessibility issues. Information is also available on the AODA Alliance website.

Moderator Shannon Kinch, project lead for CNIB Foundation Ontario’s Know Your Rights program, also pointed out that the Arch Disability Law Centre offers a free case consulting service to legal professionals who are representing people with disabilities.

During the panel discussion, Kinch asked Mitschele how he would respond, as a Crown attorney, to a hypothetical situation in which a complainant is subpoenaed to testify who has multiple disabilities, including hearing loss, sight loss and anxiety disorder. The complainant asks for transcription services and the presence of a support person for both the preparation meetings and the court appearance.

If the complainant were a client, Mitschele said, he would have a duty under the Ontario Human Rights Code (OHRC) as a paid service provider to accommodate that person to the point of undue hardship, which is a high bar to establish. He would also need the complainant’s consent in writing to bring the support person into the circle of privilege and confidentiality.

If the person were a witness, he said, the OHRC may not apply, but he would be required to accommodate that person under the rules of professional conduct and likely the AODA.

“I think as Crown attorneys we have to be held to a very high standard,” he said. “And, obviously, if it’s someone I’m subpoenaing for my case, it’s in my best interests to make sure that this person can get to court and testify effectively.”

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