Brief of the Accessibility for Ontarians with Disabilities Act Alliance to the Ontario

Brief of the Accessibility for Ontarians with Disabilities Act Alliance to the Ontario

BRIEF OF THE ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE TO THE ONTARIO LEGISLATURE’S STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY ON BILL 231 – THE PROPOSED REFORMS TO ELECTIONS IN ONTARIO

March 17, 2010

BRIEF OF THE AODA ALLIANCE TO THE ONTARIO LEGISLATURE’S STANDING COMMITTEE ON THE LEGISLATIVE ASSEMBLY ON BILL 231 –THE PROPOSED REFORMS TO ELECTIONS IN ONTARIO

I. Introduction

1. General

The Accessibility for Ontarians with Disabilities Act Alliance welcomes this opportunity to give input into Bill 231, the proposed new legislation to modernize elections in Ontario.

The AODA Alliance is a well-recognized, voluntary non-partisan coalition of individuals and organizations. Its mission is:

"To contribute to the achievement of a barrier-free Ontario for all persons with disabilities, by promoting and supporting the timely, effective, and comprehensive implementation of the Accessibility for Ontarians with Disabilities Act."

To learn about us, visit: .

Our coalition leads the ongoing, non-partisan campaign to achieve a fully-accessible Ontario for persons with disabilities. We are the successor to the Ontarians with Disabilities Act Committee. The ODA Committee advocated for over ten years for the enactment of strong, effective disability accessibility legislation. It spearheaded the campaign that led to the enactment of the Ontarians with Disabilities Act 2001 and the later Accessibility for Ontarians with Disabilities Act 2005. Our coalition builds on the ODA Committee’s work. We draw our membership from the ODA Committee's broad, grassroots base. To learn about the ODA Committee's history, visit:

In the 2007 election, Premier McGuinty promised the AODA Alliance that his Government would develop an accessible elections action plan. Both the Conservative and New Democratic Parties made similar election commitments to us. See:

Bill 231 gives all three parties an excellent opportunity to keep those election commitments.

2. Summary of Our Brief

The intention behind Bill 231 is laudable. However, its provisions on disability accessibility are extremely weak and limited. Unless substantially strengthened, it will not ensure fully accessible elections for voters with disabilities at any time in the future.

We offer a series of recommendations to strengthen this bill to:

a) make it effectively ensure the removal and prevention of all barriers impeding voters and candidates with disabilities in provincial elections;

b) make comparable provision requiring removal and prevention of the barriers which impede voters and candidates with disabilities in municipal elections. These are typically the same barriers as arise in provincial elections;

c) provide effective monitoring and enforcement to ensure that there is full compliance with these accessibility requirements.

In this brief we:

a) describe the goal at which Bill 231 should be aimed;

b) explain the foundation for the government’s duty to ensure fully accessible provincial and municipal elections for voters and candidates with disabilities;

c) summarize recent U.S. efforts at ensuring accessibility of elections for persons with disabilities, behind which Ontario is sadly lagging;

d) address the timing of Bill 231;

e) offer clause-by-clause recommendations for Bill 231, and

f) Offer additional recommendations to address accessibility issues that Bill 231’s provisions do not address at all.

At the end of this brief are two appendixes. Appendix 1 lists all our recommendations in one place. Appendix 2 sets out the correspondence between the AODA Alliance and the Ontario Government, including Elections Ontario, since the 2007 election, on the issue of elections accessibility.

3. The Goal of Bill 231’s Disability Accessibility Provisions

Bill 231 should be designed to ensure that all elections in Ontario, including provincial and municipal elections, are fully accessible to voters and candidates with disabilities, whether they have a physical, mental or sensory disability. It should achieve the following;

Persons with physical, mental or sensory disabilities (whether the disability is visible or invisible) would be able to independently and privately mark their ballot and verify their selection. Persons with disabilities would have full and equal access to all information on where and when to vote and on choices of candidates. Persons with disabilities would have full access to polling stations or accessible alternative means to vote, when access to a polling station isn’t possible. Persons with disabilities would have full access to election platforms and other public information from candidates. Persons with disabilities can fully participate in all-candidates’ debates. Persons with disabilities can fully participate in elections as candidates, without any restriction on the funds that can be spent on accommodating the candidate’s disability-related needs.

4. The Duty to Provide Fully Accessible Elections for Voters and Candidates with Disabilities

Voters and candidates with disabilities in provincial and municipal elections have a fundamental right to full, equal and barrier-free access to those elections, including the right to vote, to receive information from candidates and parties, and to themselves run for office. This fundamental democratic right has ample foundation including:

a) Section 3 of the Canadian Charter of Rights and Freedoms, which guarantees to every adult citizen the right to vote and run for office in provincial elections.

b) Charter s. 15’s guarantee of equality rights to persons with disabilities.

c) The right to equal treatment with respect to services and facilities guaranteed by the Ontario Human Rights Code, and

d) The requirement in the Accessibility for Ontarians with Disabilities Act that Ontario become fully accessible to persons with disabilities by 2025.

The pressing need for legislative action to effectively implement these rights was recently reinforced by the Information and Communication Standards Development Committee, appointed by the Ontario Government under the Accessibility for Ontarians with Disabilities Act, 2005. It recommended that legislative reforms are needed to address barriers to full participation in elections that confront persons with disabilities. The need for this new legislative initiative is also reinforced by the Premier’s 2007 election pledge to review all provincial legislation for accessibility barriers.

5. U.S. Efforts Towards Fully Accessible Elections

In the U.S. there are mandatory legal requirements for elections accessibility, as well as detailed voluntary guidelines that could readily be adopted into legislation. It does not appear to us that the Government has taken these carefully into account in designing the accessibility provisions of Bill 231.

With the enactment of the Accessibility for Ontarians with Disabilities Act, the Ontario Government has claimed to be a national leader, if not a world leader, in working towards full accessibility for persons with disabilities. In the area of accessible elections, Ontario in fact lags behind. Bill 231, as now written, will not remedy this.

While this brief offers a series of specific recommendations for improving Bill 231, we generally urge the Ontario Government to benefit from the time, effort and money that has been devoted to this topic in the U.S., and to ensure that voters and candidates with disabilities in Ontario have at least as much protection for their accessibility to elections as is the case in the U.S.

For example, Title II of the Americans with Disabilities Act covers all activities of state and local governments regardless of the government entity's size or receipt of Federal funding. Title II requires that state and local governments give people with disabilities an equal opportunity to benefit from all of their programs, services, and activities. This includes voting. (See

As well, the Help America Vote Act (HAVA) was signed into law on October 29, 2002. One of the goals of HAVA is to provide all American voters, including those who are blind or visually impaired, with the opportunity to vote both privately and independently. Therefore, HAVA requires that by January 1, 2006, all voting jurisdictions must provide at least one accessible voting machine per polling place and that any voting machines purchased with federal funds provided under HAVA on or after January 1, 2007, must be accessible. (See:

Section 301(a)(3)(A) of HAVA requires that each voting system used in federal elections be accessible for persons with disabilities, including persons who are blind or have low vision. Specifically, each polling place can satisfy this requirement through the use of at least one direct recording electronic voting system or other voting system equipped to allow voters with disabilities the same opportunity for access and participation as other voters, including the ability to vote independently and privately. (See:

The U.S. Election Assistance Commission (EAC) was established by HAVA. EAC is an independent, bipartisan commission charged with developing guidance to meet HAVA requirements, adopting voluntary voting system guidelines, and serving as a national clearinghouse of information about election administration. EAC also accredits testing laboratories and certifies voting systems, as well as audits the use of HAVA funds (See:

On December 13, 2005, the EAC unanimously adopted the 2005 Voluntary Voting System Guidelines (VVSG). These significantly increase security requirements for voting systems and expand access, including opportunities to vote privately and independently, for individuals with disabilities. These guidelines can be found on the following website:

Another piece of legislation that is frequently mentioned is the Voting Accessibility for the Elderly and Handicapped Act of 1984. This Act requires polling places across the United States to be physically accessible to people with disabilities. This piece of legislation does not create any specific standards. The text of this legislation can be found at:

As one more example, the U.S. Department of Justice released an “ADA Checklist for Polling Places” in February 2004 as a guide to improving accessibility of polling places for voters with disabilities. It can be found at the following web address:

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6. A Caution Regarding this Brief

We regret that this brief has been prepared under extraordinary time pressures. As explained later in this brief, we have been repeatedly approaching the Ontario Government over the past two and a half years since it promised an accessible elections action plan in the 2007 election. We have urged that research be done on this topic, and extensive consultations be held with Ontarians with disabilities. We have experienced a great deal of frustration. We have not been able to find out who is in charge of this issue until January 2010. We have not had a proper opportunity for full discussions of the details in this brief. This has not been for a lack of tenacious effort on our part. It would have been far better if those developing Bill 231 had provided us with an opportunity to discuss our ideas, mutually share research, and explore alternatives, before the bill was finalized and brought before the Legislature. We commend the Ontario Government for having afforded our predecessor, the Ontarians with Disabilities Act Committee, with such an opportunity, when the Accessibility for Ontarians with Disabilities Act was being developed between 2003 and 2005. We do not understand why a comparable opportunity was not afforded us and the disability community in the preparation of this bill, especially in light of the Premier’s specific election promise to us in 2007 of an accessible elections action plan.

We recognize that given the severe time pressures associated with this bill, a number of our proposals may not be able to be brought on line for the 2010 municipal elections, or the 2011 provincial elections. However, they should nevertheless all be included in an amended Bill 231. The dates on which these added measures come into effect can be staggered to enable the provincial and municipal governments to comply with them. It would be wrong to reject these ideas on a notion that the topic of accessible elections can be revisited at some future time, in another bill. After over a decade of advocating for accessible elections in Ontario, Bill 231 is our first opportunity for securing a comprehensive legislative solution to an ongoing and unacceptable tradition of barriers to elections in Ontario, confronting voters and candidates with disabilities. These solutions are long overdue. Addressing them through strong and effective legislation should not be delayed any further.

II.Our Recommendations

We first identify specific clauses in Bill 231 that need to be strengthened. We then address areas which Bill 231 does not address at all.

A. Clause-By-Clause Review of Bill 231 for Accessibility Issues

1. Ensuring Website Accessibility.

The Elections Act requires Elections Ontario to post various information on the internet. It does not require the Elections Ontario website to be fully accessible to persons with disabilities. Bill 231 expands the range of information that must be posted on Elections Ontario’s website.

The current recognized international standard for effective website disability accessibility is the World Wide Web W3C Consortium’s WCAG 2.0 Level AA.

We therefore recommend that:

#1. The bill be amended to require that wherever the Elections Act refers to Elections Ontario or others posting information on the internet or on a website, it be required to be published in a fully accessible format, either the W3C WCAG 2.0 Level AA or such higher standard that might later be developed and that Cabinet might later designate.

2. Ontario’s Sweeping Powers to Exempt Itself from Elections Act Requirements

Section 4 of the bill adds the following to the Elections Act:

“Modifications to voting process

4.4 (1) The Chief Electoral Officer may, in consultation with registered parties, direct that the voting process established by this Act be modified in accordance with this section.

Objectives

(2) The objectives of modifications under this section are:

1. Improving the voting process for electors.

2. Achieving administrative efficiencies.

3. Maintaining the integrity of the voting process….”

That provision gives examples of modifications and imposes limitations which do not impact on accessibility, except this subsection:

“(4) The following matters shall not be modified under this section:

3. The requirement that each elector place his or her ballot in the ballot box of the elector's polling place.”

This new section appears so broad that it could let Elections Ontario decide to exempt itself from accessibility requirements under the Act. Moreover, it does not specifically require Elections Ontario to ensure that any modifications to the election process adopted under this new power must be fully accessible to persons with disabilities.

This new provision continues as follows:

“Place of application

(5) The Chief Electoral Officer's direction may apply to one or more electoral districts.

Content of direction

(6) The Chief Electoral Officer's direction shall,

(a) identify the electoral district or districts to which it applies;

(b) specify the time period during which it applies;

(c) describe the modifications in detail; and

(d) refer to the provisions of this Act that will not be complied with.

Notice

(7) The Chief Electoral Officer shall provide notice of the direction in accordance with subsection (8) as soon as possible after the direction is made, and in any case before the close of nominations in any election to which it applies.

Same

(8) The direction shall be published on a website on the Internet and copies shall be provided,

(a) to the leader of each registered party; and

(b) to the returning officer for each electoral district to which the direction applies.

Validity of election

(9) An election held in accordance with this section is not invalid by reason of any non-compliance with this Act that is authorized by the direction.

Report

(10) When an election is conducted in accordance with a direction under this section, the Chief Electoral Officer shall include an evaluation of the modifications made by the direction,

(a) in any report that the Chief Electoral Officer makes with respect to the election; or

(b) in the next annual report made under section 114.3.”

We therefore recommend that:

#2. Section 4 of the bill be amended to:

a) provide that that provision does not give Elections Ontario or the Chief Electoral Officer any authority to exempt itself from any accessibility requirements in the Elections Act or any other legislation, and

b) require that no modifications may be undertaken under this power unless Elections Ontario certifies that they are fully accessible to and barrier-free for voters and candidates with disabilities.

3. Accessible Voting Machines

Currently, a voter must mark a paper ballot to vote. This is not accessible to persons with print disabilities and those with motor limitations that preclude the independent marking and verification of one’s ballot.

An indispensible element of the right to vote is the right to independently mark one’s ballot in privacy, and to independently verify the choice the voter has selected, while ensuring that the ballot was properly marked and not inadvertently spoiled. Substantial action has been needed for some time to address this serious barrier. Extensive work has been done in this area in the U.S. In contrast, Bill 231 takes extremely limited and inadequate baby-steps forward to address the need of voters with disabilities who cannot independently mark and verify their own ballot. It lets Elections Ontario deploy accessible voting machines under very limited circumstances, if Elections Ontario chooses to do so. It provides:

“23. (1) The Act is amended by adding the following section:

Accessible voting equipment, etc.

44.1 (1) At an election, the Chief Electoral Officer may direct that accessible voting equipment and related vote counting equipment be used in accordance with this section.

Direction

(2) The Chief Electoral Officer's direction shall describe the accessible voting equipment and related vote counting equipment in detail and refer to the provisions of this Act that will not be complied with.

Notice

(3) No later than 21 days before polling day, the Chief Electoral Officer shall,

(a) provide copies of the direction to the leader of each registered party; and

(b) publish the direction on a website on the Internet.

Returning offices

(4) When the Chief Electoral Officer makes a direction under subsection (1), the accessible voting equipment and related vote counting equipment shall be made available in returning offices during the period that begins on the first day of advance polls and ends on the day before polling day, as follows: