Canadian Judgments Need Style

by Lexum
March 27th 2013

As many colleagues involved in serving Canadian government’s online projects along the years, I too did my fair part of fence-sitting about web accessibility requirements. Those requirements were perceived as a set of obligations to take into account dying browsers, obsolete computers, extra narrow screens, and some other minor annoyances about coding more legible HTML. We at Lexum complied, without enthusiasm if the truth must be said, but we complied as any service provider had to in order to keep the business going.

This feet dragging cannot be continued any longer.

The new situation derives from an application that resulted in a Federal Court decision (mostly reaffirmed by the Federal Court of Appeal) to the effect that all departments and agencies must make their websites accessible by August 30th 2013. The accessibility requirements go far beyond carrying on a comprehensive cleanup of web pages. Practical solutions to provide accessible information are starting to appear, but the requirements affect not only governments’ web activity but have implications far upstream, as in the way documents are prepared and, more interestingly, in the way they are written.

Jodhan v. Canada

In 2008, a visually impaired person applied for judicial review at the Federal Court to obtain a declaration that Federal Government websites were in fact inaccessible to blind persons, and that as such, , her equality rights under section 15(1) of the Charter were violated (Jodhan v. Canada (Attorney General), 2010 FC 1197 (CanLII).

On February 9, 2011, Kelen J. allowed the application. The Court declared that the applicant has indeed been denied equal access to government information and services and that the situation “is representative of a system wide failure by many […] government departments and agencies to make their websites accessible”. For the Court, this failure constitutes an infringement of section 15(1) of the Charter. The judge also identified a constitutional obligation for the government to bring itself into compliance with the Charter within 15 months. The Court elected to “retain jurisdiction over the implementation of this declaration” and announced that it “will resume its proceedings if necessary to ensure the effect of this declaration is properly implemented”. The only compromise being that the declaration “does not apply to stored government historical and/or archived information and that must be provided in an accessible format upon request”.

At the Federal Court of Appeal, the essential elements of the Federal Court disposition with regard to required accessibility were confirmed even though some elements of the first instance decision were varied, especially to remove the declaration of infringement by the government and the disposition to the effect that the Federal Court was keeping jurisdiction to ensure the effect of its declaration (Canada (Attorney General) v. Jodhan, 2012 FCA 161 (CanLII)).

The 15 months delay was confirmed by the Federal Court of Appeal on May 30th 2012. Since then, the clock is ticking. The delay given to ensure compliance to the Treasury Board’s Standard on Web Accessibility (the “Standard”) is to expire on August 30th, 2013. In this context, departments as well as administrative and judicial bodies are actively examining their options and looking for solutions.

Treasury Board’s Standard on Web Accessibility and WCAG 2.0

In the past, requirements for web accessibility were more limited. The main source of guidance for web accessibility comes from the W3C consortium. W3C adopted its first set of recommendations, Web Content Accessibility Guidelines 1.0 (WCAG 1.0) in 1999. WCAG 1.0’s recommendations were essentially about web technologies and common sense requirements: offering text alternative to visual content, avoiding reliance on color or spacing alone, using HTML markup, style sheets, and tables in a meaningful way and so on. The only recommendation going beyond technical advice was the one calling to use “the clearest and simplest language appropriate for a site’s content”. Of course, as far judgments are concerned, one has to assume (or hope?) that the latter requirement is complied with.

More recently, taking effect on August 1st 2011, the Treasury Board set in its Standard on Web Accessibility which includes new accessibility requirements: each web page must meet all WCAG 2.0 conformance requirements up to the AA Level. These requirements are similar to those prescribed in the United States by Section 508 of the Rehabilitation Act (29 U.S.C. 794d, as amended by the Workforce Investment Act of 1998 (P.L. 105-220), August 7, 1998).

These statutory requirements constituted a game changer, especially when one takes into account the Jodhan case.

The technical requirements for web site designers are not relevant in this post. Actually, any bona fide lawyer can just ignore them since his only contact with the technical part of the Standard would be to force others to comply with it. But some other requirements will affect more directly all those who are involved in the preparation and distribution of judgments. In other words, some of the website accessibility requirements will eventually impose themselves on lawyers. To keep this post short, I will limit the illustrations to some of the facets of the Info and Relationships Success Criterion (1.3.1.):

  • Heading with appropriate level (H1-H6);
  • List formatting;
  • Quotation.

The Standard reference to WCAG 2.0 Level AA implies that all these elements have to be marked-up appropriately in your MS-Word document to have a conformant HTML or PDF document at the end of the process. These marks cannot be programmatically added downstream to a document where these elements were not properly identified at the drafting or proof-reading stage.
Consequently, authors of decisions and the personnel assisting them will now have to identify as they go structural and semantic elements such as headings, lists and cited text with the appropriate word processor functions.

Some practical solutions

Two elements must be considered here.

First, the web application (i.e. the software that serves the web pages) must itself be compliant. Rules defining conformity to the Standard are numerous, but once understood, they can be systematically implemented. This is the easy part.

Secondly, the documents published must also be made accessible. To serve that need, again two situations must be examined. When documents to be published were not created accessible, they must be processed to become accessible in their native format. Then, accessible documents – created accessible or processed for accessibility – must be converted into HTML or PDF in a manner which will preserve their accessible character.

Keeping in mind the August 30th deadline set forth by the courts in the Jodhan case many decisions issued by Federal courts and tribunals in the recent years will have to be processed for accessibility. This is a daunting task for past documents, but measures can be taken right now to make certain that documents are created accessible.

Have you heard about Ms-Word’s Style feature?

The funny part of Jodhan v. Canada is that it now becomes imperative that judicial documents, as many other government-produced documents, be prepared with more technical care. For over twenty years now, the main word processor software products have been offering a style feature to, at the same time, parameterize appearance and to mark document structure. This is a very powerful feature, it serves very well individuals and organizations who took the time to understand the tool and use it. However, to my knowledge only a small percentage of legal professionals know about documents style features and that percentage does not seem to be much larger in Canadian courts and tribunal support staff.

What is amusing though is that the imposition of the Standard on web accessibility does not limit its effects to the techies programming web sites. It is not that simple this time. The Standard also requires that the documents themselves be accessible and for that, ordinary people must be prepared to use the style feature.

To have seen a lots of decision documents in my career, I can guarantee you that this is not the current practice in Canadian courts. A significant amount of training will be required for the judges and their assistants. Here, templates could and will help, but then, each day, with each document, people will have to use their word processor in a new more sophisticated way. Changing habits of that sort is not easy but this will be an unavoidable challenge to be overcome if the courts and tribunals are to provide accessible documents the way they are nowadays specified.

Summing up, this time the accessibility requirements go far beyond skin deep web site technologies. Stringent directives to programmers will not do it. Lawyers and – may I dare to say – “judges” as well as judicial staff and administrators are among those who must act to implement the looked after accessibility. In the medium term, this will change forever the way legal documents are prepared in our courts.

From now on, style is in order.

As it is often the case, the improvement made to serve one may ends up serving all others. In this case, the Standard beneficiaries are numerous, over 600,000 Canadians present vision impairment. If court personal and beyond the judges themselves were to improve their command of their word processor up to the level required to produce accessible decisions, not only 600,000 Canadians, but all of us will benefit from better formatted judgments. Those who build legal information systems will use these better marked-up elements of decisions to add value with much more efficiency.

Daniel Poulin

Disclosure : Lexum provides the Decisia product and various services to courts and tribunals.

Note: Please visit the link below for links to above references.

Reproduced from