‘Humanizing’ Disability Law: Citizen Participation in the Development of Accessibility Regulations in Canada

Revue Internationale des Gouvernements Ouverts (2016) pp. 93-120

28 Pages Posted: 2 Jun 2016 Last revised: 9 Mar 2017

Laverne Jacobs

University of Windsor - Faculty of Law

Date Written: May 31, 2016

Abstract

This paper examines one of the most recent and widespread cases of consultation to occur in the development of lawmaking in Canada: citizen participation in the enactment of accessibility standards for persons with disabilities. Canadian provinces are attempting a new politico-legal experiment to combat disability discrimination. Through consultation processes leading to binding regulations, they are enacting mandatory standards of accessibility under legislation such as the Accessibility for Ontarians with Disabilities Act, 2005 (AODA). These statutes create an antidiscrimination regulatory process designed to offer participatory rights to persons with disabilities and other interested stakeholders in the development of accessibility standards. The standards address conditions of social inclusion in areas such as customer service, employment, transportation, and information and communication, and aim to break down a host of barriers including architectural and attitudinal ones. Collaborative standard development is a new and proactive approach to addressing disability barriers in society. The first part of the paper presents a comparative overview of Canadian accessibility legislation with a focus on citizen participation.

Consultation with citizens to create accessibility standards is a trend that is now being picked up by the federal government and other provincial governments across Canada. But, how well does it work? Using the theoretical framework created by Cass Sunstein in his recent work, Valuing Life: Humanizing the Regulatory State, the second part of this paper illustrates that the Canadian regulatory legislation and consultative processes succeed, to varying degrees, in: i) capturing qualitatively diverse goods and promoting sensible trade-offs among them, ii) taking account of values that are difficult or impossible to quantify, and iii) attempting to benefit from the dispersed information of a wide variety of human beings. However, this paper argues for an approach to humanizing the regulatory process that depends on deepening dialogue rather than relying on monetary valuation. To foster regulation grounded in disciplinary analysis instead of intuition, extended respectful dialogue on points that need clarification is most appropriate in the context of regulating for the equality rights of persons with disabilities. This evaluation of the Canadian experience is offered in an attempt to fill a gap in the literature relating to how accessibility law consultation processes are designed and may be assessed.

Keywords: Law and disability, citizen participation, open government, lawmaking, antidiscrimination, accessibility legislation, Canada, Administrative law, regulatory process

JEL Classification: J7, J78, K1, K23

Suggested Citation

Jacobs, Laverne, ‘Humanizing’ Disability Law: Citizen Participation in the Development of Accessibility Regulations in Canada (May 31, 2016). Revue Internationale des Gouvernements Ouverts (2016) pp. 93-120 . Available at SSRN: https://ssrn.com/abstract=2787422

Laverne Jacobs (Contact Author)

University of Windsor - Faculty of Law ( email )

401 Sunset Avenue
Windsor, Ontario N9B 3P4 N9B 3P4
Canada

HOME PAGE: http://www.uwindsor.ca/law/ljacobs

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