A Court Ruling can be the Mother of Innovation

In our recent work on the use of GitHub in the Canadian public sector (forthcoming in the journal Canadian Public Administration), we found that a major force behind the Government of Canada’s decision to adopt GitHub in one context was a court ruling on whether the federal government’s websites were inaccessible to the disabled.

The Canadian Charter of Rights and Freedoms and the Canadian Human Rights Act, supplemented by provincial human rights acts, are the foundation upon which the legal bases for inclusive rights for those with disabilities in Canada are ensured (see, e.g., Michael Prince‘s 2009 book “Absent Citizens: Disability Politics and Policy in Canada“). Specifically, Section 15 of the Charter guarantees the equality rights of Canadians, including Canadians with disabilities:

Equality Rights

Equality before and under law and equal protection and benefit of law

 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Affirmative action programs

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Nick Zap and Craig Montgomerie (see International Journal on E-Learning; and their follow-up here) speculated several years ago that public sector websites inaccessible to those with disabilities could be subject to a section 15 Charter challenge – and the case of Donna Jodhan has borne that out.

Jodhan, a legally blind Toronto resident, sued the Government of Canada in 2006 because citizen services made available via federal websites were inaccessible to her, despite the use of screen reader technology and her own technical proficiency.

The government argued that the accessibility of their websites and forms was not subject to a section 15 Charter ruling because the government provided alternative means of communication such as telephone, regular mail and in-person consultation.

On February 9 2011, the Federal Court rejected the government’s arguments and found that the inaccessibility of government websites was a violation of Jodhan’s Charter equality rights. The ruling stated that the government had a constitutional obligation to make every website within the federal hierarchy accessible to disabled clients and gave the government 15 months to achieve this (see Jodhan v. Canada (Attorney General), [2012]. FCA 161).

The Harper government subsequently appealed the decision. On May 30 2012, the Federal Court of Appeal unanimously rejected the federal government’s appeal. However, the Federal Court ruling was amended to apply to the TBS only, removed the court’s supervision of the implementation of the decision and restricted the Charter implications of the ruling (see Canada (Attorney General) v. Jodhan, [2012] FCA 161).

Despite what the Council of Canadians with Disabilities described as a partial setback (see “Jodhan Decision Advances Access to Web Sites for Persons with Vision Impairment“), the impact of the initial Federal Court ruling had already set in motion the series of events that would lead to the development of the Web Experience Toolkit, implementing new Treasury Board of Canada Secretariat web standards on accessibility, usability and interoperability.


One comment on “A Court Ruling can be the Mother of Innovation

  1. Pingback: Using GitHub in Government: A Look at a New Collaboration Platform | Justin Longo, phd

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