In general, laws benefit from the inclusion of mechanisms to ensure accountability, transparency and effectiveness. Often there is a lack of monitoring and oversight mechanisms for systems disproportionately or exclusively affecting persons with disabilities; as a result, it is difficult or impossible to determine whether these systems are operating effectively or the degree to which persons with disabilities are subject to abuses or violations of their rights. Monitoring of the law and regular evaluation of its effects provides a strong foundation for meaningful law reform, and mechanisms for monitoring and evaluation should be built into the law from the outset. This section considers the mechanisms within laws for accountability, transparency, monitoring and evaluation.
Applying the Principles to Step 7
Monitoring and accountability mechanisms relate to the principles in a general way, in that without them, we cannot determine whether or ensure that a particular law is respecting or advancing the principles. As well, accountability mechanisms can promote the principle of participation and inclusion by giving persons with disabilities the opportunity to have a voice in the operation and reform of laws that affect them.
QUESTIONS FOR CONSIDERATION IN APPLYING THIS STEP
Does the law include a mechanism to allow those affected, including persons with disabilities, to provide feedback on the effectiveness of the law and on any unanticipated negative consequences for persons with disabilities?
Does the law include provisions that require meaningful information about its impact and effectiveness to be systematically gathered and documented?
Does the law require that information about its operation and effectiveness be made publicly available?
Are those charged with implementing and overseeing the law required to regularly report on their activities and the effectiveness with which the law, program or policy is administered?
Where the law provides significant discretion to those charged with its implementation, does it include additional reporting and monitoring mechanisms to ensure that this discretion is exercised consistently, fairly, transparently and in a principled manner?
Does the law require regular review of its goals, to determine whether they are still meaningful and appropriate?
Does the law require regular review of the effectiveness of its implementation and whether the aims of the law are being achieved?
If the law was developed as a partial response to an issue because of resource or other constraints, are there mechanisms in place to ensure that the issue is regularly reviewed and that progress is made towards better fulfillment of the law’s aims?
Are the resources allocated to the law or policy regularly reviewed to ensure that they remain adequate and appropriate for its effective implementation?
Where reviews are carried out, are steps taken to act on the results of the review? Has consideration been given to making available to the public the results of significant reviews?
APPLYING THE FRAMEWORK: EXAMPLES OF THE RELATIONSHIP BETWEEN THE PRINCIPLES AND MONITORING AND ACCOUNTABILITY MECHANISMS
Monitoring of Transitions under Individual Education Plans
Students who are determined to be “exceptional” under Ontario’s Education Act receive Individual Education Plans (IEPs). For students aged 14 and older, the IEP must contain a plan for transitioning to appropriate post-secondary activities, including further education, work and community living. These provisions are of substantial importance in supporting the principles of independence and autonomy (in terms of the ability of students to make informed choices about their future and successfully transition into adulthood), as well as social inclusion and participation (in ensuring that students do not fall into isolation or marginalization after graduation). The transition plan is developed in consultation with the student’s family and, for those students aged 16 and older, the students themselves. The Ministry of Education sets specific standards for transition plans in IEPs, including provisions for implementing and monitoring them.
However, it appears that often transition plans exist on paper rather than in practice, in part due to funding issues. In its 2008 Report, Ontario’s Auditor General noted that although transition plans are completed for exceptional students as required, there is no documentation on whether intended actions were completed and with what degree of success. There is currently no requirement for monitoring and evaluating transition plans, although the Ministry of Education is currently developing a Policy and Program Memorandum on Transitions in response to the Auditor General’s comments. Therefore, it may be that the laudable purposes of these provisions are being only imperfectly achieved, and that the progress towards fulfilment of the principles could be improved.
See Law Commission of Ontario Background Paper: Applying the Framework: Case Studies on Transition Points in the Lives of Persons with Disabilities (forthcoming)
Review of the Accessibility for Ontarians with Disabilities Act
The Accessibility for Ontarians with Disabilities Act (AODA) is a groundbreaking statute, long advocated for by Ontarians with disabilities, which aims to make Ontario fully accessible by 2025 through a process of accessibility standards setting, overseen by the Accessibility Directorate of Ontario. An innovative provision of the AODA is the requirement for a review and report, within four years of the statute coming into effect, and every three years thereafter, of the effectiveness of the Act and regulations. The review must include consultation with the public and specifically with persons with disabilities.
Mr. Charles Beer completed the first review of the AODA in February 2010, submitting a report that comprehensively reviewed developments under the AODA to that date and set out a number of recommendations for strengthening the Act and its implementation. The review was notable for its open and participatory process, as well as its commitment to accessibility. It included extensive public outreach, close to 90 public meetings, four roundtable sessions, a survey questionnaire and a call for written submissions that resulted in 58 briefs.
The monitoring process therefore not only provided an effective mechanisms for assessing the degree to which the AODA has succeeded in advancing the principles, but in itself has embodied the principles by respecting the dignity and worth of the perspectives of persons with disabilities and promoting their social inclusion and participation in the review.
See Report of the Independent Review of the Accessibility for Ontarians with Disabilities Act (February 2010)
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