ACCESSIBILITY FOR ONTARIANS WITH DISABILITIES ACT ALLIANCE UPDATE

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PLEASE ENDORSE THE AODA ALLIANCE BRIEF ON STRENGTHENING BILL 231 TO ENSURE FULLY ACCESSIBLE ELECTIONS FOR VOTERS AND CANDIDATES WITH DISABILITIES

March 17, 2010

SUMMARY

The AODA Alliance has submitted a detailed brief to the Ontario Legislature’s Standing Committee on the Legislative Assembly. It calls for detailed amendments to Bill 231 to ensure that provincial and municipal elections in Ontario are fully accessible to voters and candidates with disabilities. Below we set out this brief, with its 23 constructive recommendations to strengthen this very weak bill.

Bill 231 is the McGuinty Government’s proposed new legislation aimed at modernizing elections in Ontario, including providing for their accessibility to persons with disabilities. if you want to read Bill 231, click on this link:
http://www.aodaalliance.org/docs/1209-Bill-231.doc

Our position in this brief is summarized as follows:

“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.”

At the end of this brief are two appendixes. Appendix 1 lists all our recommendations in one place. It is set out below. If you don’t want to read the whole brief, you can easily just read Appendix 1.

Appendix 2 sets out the 69 pages of correspondence between the AODA Alliance and the Ontario Government, including Elections Ontario, since the 2007 election, on the issue of elections accessibility. Those letters and emails show that we have been trying very hard to get the Ontario Government to effectively address this issue.

We do not set out Appendix 2 below. Download Appendix 2 in MS Word format.

If you would like to download the entire brief, including both Appendix 1 and Appendix 2.

HOW YOU CAN HELP our campaign for fully accessible elections in Ontario

Please tell the Legislature’s Standing Committee on the Legislative Assembly if you endorse the AODA Alliance’s Brief on Bill 231. You can send a short message to that Standing Committee via email at:
grannum@ontla.ola.org

Or via fax: (416) 325-3505

If you write the Standing Committee, feel free to add any ideas you have. If you don’t have time to write much, even one sentence of support will be great.

If you are going to make a presentation to the Standing Committee at its public hearings on Bill 231, feel free to make as much use of the contents of this brief as you wish. It would also be great if you were willing to tell the Standing Committee during your presentation that you endorse our recommendations. You still have until 4 pm on Thursday, March 18, 2010 to sign up for those public hearings. We have confirmed with the Clerk of the Standing Committee that you can ask to make your presentation over the phone, if travelling to Queen’s Park presents difficulties for you. Just ask the Clerk to set up a phone presentation on March 24 or 31, 2010. Again, you can use the email address or fax number set out above for contacting the Clerk of the Standing Committee to ask to make an oral presentation to the Standing Committee.

We regret that due to the very tight time lines for preparing and submitting this brief to the Standing Committee, we did not have time to circulate it to you in draft form, to get your feedback, before we finalized it. However, we have used feedback that we have gotten from AODA Alliance supporters in the past, in putting this brief together. Also, we welcome your feedback on it now. We can use that feedback as we prepare our oral presentation to the Standing Committee. Send your feedback to us at our usual email address:
aodafeedback@gmail.com

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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: http://www.aodaalliance.org.

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: http://www.odacommittee.net

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: http://www.aodaalliance.org/strong-effective-aoda/10012007.asp

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 http://www.ada.gov/cguide.htm)

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: http://www.nfb.org/images/nfb/documents/word/HAVA08_Blind_Voters_Guide.doc)

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: http://www.fec.gov/hava/law_ext.txt)

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: http://www.eac.gov/about).

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:
http://www.eac.gov/program-areas/voting-systems/voluntary-voting-system-guidelines.

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:
http://www.law.cornell.edu/uscode/html/uscode42/usc_sup_01_42_10_20_20_I-F.html

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:
http://www.ada.gov/votingchecklist.htm

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:

1. The equipment shall be made available during advance polls that are held in returning offices.

General election

(5) When the Chief Electoral Officer makes a direction under subsection (1) at a general election, the accessible voting equipment and related vote counting equipment shall be made available in every electoral district.

Condition

(6) Accessible voting equipment and related vote counting equipment may be used under subsection (1) only if an entity that the Chief Electoral Officer considers to be an established independent authority on the subject of voting equipment and vote counting equipment has certified that the equipment meets acceptable security and integrity standards.

Rules

(7) The use of accessible voting equipment and related vote counting equipment under subsection (1) is subject to the following rules:

1. The equipment must allow the elector to vote privately and independently.

2. The equipment must not be part of or connected to an electronic network.

3. The equipment must be tested,

i. before the first elector uses the equipment to vote, and

ii. after the last elector uses the equipment to vote.

4. For the purpose of paragraph 3, testing includes, without limitation, logic and accuracy testing.

5. Voting by means of the equipment must not begin before the test conducted under subparagraph 3 i has been successfully completed, even if advance polls have already begun.

6. The information made available to the elector before voting must comply with subsections 34 (2) and (3), with necessary modifications.

7. The equipment must create a paper ballot that records the vote cast, is retained in the same way as ordinary ballots and shows the name of the electoral district, the date of polling and the name of the printer.

8. The equipment must allow the elector to verify his or her vote, without the assistance of another person, before the paper ballot is printed.

9. The equipment or the process used must allow the elector to verify his or her vote after the paper ballot is printed but before casting his or her vote.

10. The equipment must have a feature which, if a ballot is unreadable or unmarked, brings the fact to the elector's attention. When this happens, the elector must be given another ballot or another opportunity to mark the first ballot.

Counting

(8) Votes that are cast at a returning office by means of accessible voting equipment shall be counted by the related vote counting equipment, subject to subsection (9).

Inconsistent tests

(9) If the tests conducted under subparagraphs 3 i and ii of subsection (7), are inconsistent, the returning officer shall immediately advise the Chief Electoral Officer, who may direct the returning officer to have the count conducted manually.

Report

(10) When accessible voting equipment and related vote counting equipment are used in an election under this section, the Chief Electoral Officer shall include a report on the matter,

(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.

Definition

(11) In this section,

"accessible voting equipment" means voting equipment that is accessible to persons with disabilities.

(2) Subsection 44.1 (4) of the Act, as enacted by subsection (1), is amended by adding the following paragraph:

2. After the last day of advance polls, the equipment shall continue to be made available from the fifth day before polling day until the last day before polling day, for electors voting in person by special ballot at returning offices in their own electoral districts.”

This provision suffers from serious flaws. It does very little for persons with disabilities. First and foremost, it merely permits Elections Ontario to use accessible voting machines. It does not require Elections Ontario to use any accessible voting machines. Under it, no accessible voting machines need ever be deployed. This falls far short of the requirements in the AODA, the Charter of Rights and the Human Rights Code to ensure barrier-free voting for voters with disabilities.

This is especially troubling since the current Government has made no commitment to fund the deployment of accessible voting machines. Elections Ontario has had a prototype accessible voting machine designed, tested and available for over one year. Elections Ontario reported to us that it is priced at about $11,000 per machine. To install only one of these machines in each Ontario riding during a general election would cost over $1,000,000. Absent a clear Government commitment to provide this technology and to fund it, and absent any mandatory language in this legislation to require its deployment, there is no reason for voters with disabilities to have any confidence that it will be widely deployed.

Second, this provision is far too restrictive on the kind of accessible voting technology that can be deployed. It seems almost tailor-made to permit the specific machine that Elections Ontario has commissioned from one supplier. The bill should give far more latitude for the technology that can be used to enable all voters with disabilities to vote independently and to verify their vote. For example, this provision would not allow, even on a trial basis, a far lower cost method for a great many voters with disabilities to overcome the barriers they now face, i.e. a secure system for over-the-phone voting. Where this provision would impede the adoption of other less-expensive and better technology for accessible voting for persons with disabilities, this provision would run afoul of the Charter of Rights’ guarantees of equality to persons with disabilities (s. 15) and the right to vote) (s.3).

Third, this provision does not adequately specify the level of accessibility that the voting machine should provide for voters with disabilities. It should specify in non-exhaustive terms the kinds of functionality it should provide.

We recognize that fully-accessible voting technology may not be able to be deployed this year. However, this bill should specify by when that technology must be deployed, and set a minimum of how available it must be. This should take into account the substantial barriers to accessible transportation that Ontarians with disabilities continue to face.

Fourth, this bill does not require Elections Ontario to let voters with disabilities know in an accessible way, and well in advance, when and where accessible voting machines will be deployed. If voters with disabilities don’t know about them, they won’t make efforts to use them. If they don’t use them, they will be faced with unfair claims that there is little demand for them.

It is especially important to ensure proper notice to the broad voting public, and not merely via internet postings, since this bill also lets Elections Ontario depart from the tradition of consistent polling hours, and lets Elections Ontario open and close different polls at different times. This is likely to create confusion for the public, including voters with disabilities. If a voter with a disability has arranged pre-scheduled para-transit, only to find that the poll is not open for the full day, this could lead them to lose their right to vote, since it is usually not possible to book a second ride in the same day with para-transit services.

There has been quite extensive work on the topic of accessible voting, including accessible voting machines, in the U.S. since the chaos of the 2000 presidential election. There is no indication to us that the Ontario Government or Elections Ontario has sought to fully capitalize on that activity when addressing the accessibility needs of voters and candidates with disabilities. Ontario should not re-invent wheels that the U.S. has already spent money and time developing in this area.

We therefore recommend that:

#3. Section 23 of the bill should be amended to:

a) require that by a designated date, no later than the scheduled 2015 Ontario election, Elections Ontario will have available to voters with disabilities across Ontario accessible voting machines which will enable voters with print disabilities, (such as vision loss or motor limitations) the ability to independently vote in privacy, and to verify their choice;

b) setting the functionality that accessible voting machines must provide, without otherwise limiting the technology that can be used e.g. without prohibiting the technology from being connected to an electronic network.

c) require Elections Ontario to make public by a designated date its plans for this technology, after consulting on it with persons with disabilities;

d) require Elections Ontario to make public via accessible formats, internet sites and media, the availability and location of accessible voting machines;

e) require Elections Ontario to consult with persons with disabilities after the deployment of this technology, and to make public the feedback received and any changes to be made as a result of that feedback.

4. Timing when polls are open.

Sections 8 and 22 of the bill let Elections Ontario decide to open and close different polls at different times of the day in some situations. The bill does not require wide publicity of these variations in accessible formats and media, e.g. to reach voters who do not use or have access to the internet.

This is insufficient for voters with disabilities. Voters with disabilities must arrange accessible transportation in advance of election day. Different hours of voting at different polls and temporary or mobile polls that may only be open for short periods, will likely create confusion for many, and may lead people to show up at times when there is no poll. For those depending on para-transit (which must be booked at least a day in advance), this could lead voters with disabilities to lose their vote altogether.

We therefore recommend that:

#4. Sections 8 and 22 of the bill be amended to require that Elections Ontario widely publicize the hours that polls are open, not limited to the internet, including via accessible formats and media that are likely to reach voters with disabilities, with a higher duty to publicize if hours will vary from poll to poll, or on different days during an election.

5. Special Ballot

Section 25 of the bill is helpful. It lets voters vote via a “special ballot” i.e. a mail-in ballot. However, it includes only limited provisions aimed at ensuring that the special ballot procedures are fully accessible to voters with disabilities. For example. It provides:

“Home visit

45.3 (1) At an election, an elector may make a request for a home visit to the returning officer in the electoral district where the elector resides if,

(a) it would be impossible or unreasonably difficult for the elector to attend at a returning office; and

(b) the elector needs assistance with making an application to vote by special ballot, because of a disability or because of inability to read or write.

Same

(2) The returning officer shall verify that the elector,

(a) satisfies the conditions set out in clauses (1) (a) and (b); and

(b) resides in the electoral district.

Same

(3) When the verification is complete, the returning officer shall arrange for two special ballot officers to visit the elector and assist him or her with making the application and, on request, with voting.

Place of visit

(4) The elector is entitled to have the home visit at any place in the electoral district that he or she specifies.

Application of s. 45.2 (4)

(5) Subsection 45.2 (4) applies to the home visit, application and voting, with necessary modifications.

Elector to whom s. 15 (1.3) applies

(6) An elector to whom subsection 15 (1.3) applies may make a request for a home visit to the returning officer in the electoral district where the elector is temporarily living, whether the elector wishes to vote in that electoral district or in the electoral district where his or her residence is located, and subsections (1) to (5) apply with necessary modifications.”

This provision gives Elections Ontario a sweeping discretion to decide which voters it will assist via a special ballot. Elections Ontario would have unilateral authority to decide if “…it would be impossible or unreasonably difficult for the elector to attend at a returning office; and … the elector needs assistance with making an application to vote by special ballot, because of a disability or because of inability to read or write.” If a voter says he or she cannot go to the returning office due to problems getting accessible transit, or because he or she cannot afford a taxi, the bill leaves it to Elections Ontario to decide if that qualifies the voter for a special ballot. There is no limitation in the bill on what Elections Ontario can demand of a voter to prove that he or she meets this test.

If Elections Ontario refuses a request for a special ballot, the bill provides no recourse, or right of appeal. An expeditious appeal is needed, so that the matter can be resolved before the election is over.

The bill tries to accommodate voters with disabilities as follows:

“Setting aside of special ballot

45.10 (1) The special ballot officers shall set aside an outer envelope unopened if,

(a) the information about the elector in the declaration on the outer envelope does not correspond with the information in the elector's application to vote by special ballot;

(b) the declaration on the outer envelope is not signed;

(c) the correct electoral district of the elector whose ballot is contained in the outer envelope cannot be ascertained;

(d) the outer envelope was received in the returning office or by the Chief Electoral Officer after 6 p.m. on polling day; or

(e) the outer envelope relates to an electoral district for which the election was postponed in accordance with section 31.

Exception

(2) Clause (1) (b) does not apply if the special ballot was marked with assistance in a home visit under section 45.3.”

The provision assumes that the voter can read and write, unassisted, where it provides:

“Voting by means of special ballot kit

45.7 An elector who wishes to vote by means of a special ballot kit shall, (a) write on the ballot the given name and surname, or initials and surname, of the candidate for whom the elector is voting, and the candidate's political affiliation if two or more candidates have the same name;

(b) place the ballot in the inner envelope and seal the inner envelope;

(c) place the sealed inner envelope in the outer envelope and seal the outer envelope;

(d) complete and sign the declaration on the sealed outer envelope;

(e) place the sealed outer envelope in the mailing envelope; and

(f) mail or deliver the mailing envelope,

(i) to the returning office in the elector's electoral district, in the case of an application under subsection 45.2 (5),

(ii) to the Chief Electoral Officer, in the case of an application under subsection 45.2 (6).”

Nothing in this regime of special ballots requires that the special ballot kit or the procedures for home visits, ensure that voters with disabilities can independently mark the ballot in privacy and verify his or her choice.

We therefore recommend that:

#5. Section 25 of the bill, governing special ballots, be amended to:

a) broaden the criteria for home visits to remove barriers to their use by voters with disabilities where needed, and to remove the sweeping discretion given to Elections Ontario over who will receive a home visit;

b) provide for an expeditious right of appeal in any case where Elections Ontario refuses to provide a home visit for a special ballot;

c) require that special ballot kits and voting procedures enable voters with disabilities to independently mark their ballot in privacy and verify their choice.

6. Researching new Ways to Make Elections Accessible

The bill includes a provision which lets Elections Ontario research new ways to make elections accessible to voters with disabilities. It states:

“32. The Act is amended by adding the following section:

Studies by C.E.O.

114.4 (1) The Chief Electoral Officer may study methods of,

(a) improving the voting process; and

(b) facilitating voting by persons with disabilities.

Same

(2) The Chief Electoral Officer's studies may be conducted by doing one or more of the following things:

1. Causing research to be carried out and reports to be written.

2. Establishing one or more advisory committees.

3. Causing one or more conferences to be held.”

This provision is mere window-dressing, because:

a) It does not require Elections Ontario to undertake any research;

b) Elections Ontario does not need a provision in the bill to be able to do research, hold conferences or consult with persons with disabilities. Thus, this provision adds nothing of any substance;

c) This provision does not require Elections Ontario to make the results of their research public.

d) The Government has made no commitment to fund greater research efforts by Elections Ontario in this area;

e) We have been urging the Ontario Government to do research in this area since it made its 2007 election commitment to us. We are unaware of any significant efforts in response to our proposals.

We therefore recommend that:

#6. Section 32 of the bill be amended to:

a) require Elections Ontario within a specified period to undertake the research referred to in it, not merely permit Elections Ontario to do that research regarding voting accessibility, and requiring that the results of that research be made public;

b) require that research to include investigating options for ensuring elections accessibility attempted in other jurisdictions such as the U.S.

c) require the Government to provide Elections Ontario with funds to enable that research to be undertaken.

B. Important Election Barriers The Bill Does Not Address

This bill does not address key barriers to elections in Ontario that are well-known. These must be addressed to achieve fully-accessible elections in Ontario for voters and candidates with disabilities.

1. Accessible Polling Stations

This bill does not impose any requirements to ensure that all polling stations are fully accessible to voters with disabilities. It leaves it to Elections Ontario to select polling station locations. It requires Ontarians with disabilities to trust Elections Ontario not to select and operate inaccessible ones.

Past experience with Elections Ontario, culminating with the February 4, 2010 Toronto by-election, shows that voters with disabilities cannot count on Elections Ontario to ensure accessible polling stations.

(a) Elections Ontario’s Record on Providing Accessible Polling Stations

The enormity of the problem of barriers in Ontario elections has been independently verified. We present four sources showing this.

First, after the 2007 election, Elections Ontario was required to produce a report on the accessibility of that election to people with disabilities. In June 2008, it rendered a deeply troubling report. That report carried on for pages making it appear that the election was a bastion of accessibility. Well into the report, the troubling truth was revealed. It stated:

“Elections Ontario’s 2007 post-election survey was conducted by Ipsos Reid, an independent research firm, and it included questions specific to electors with special needs.

Survey results show that the experience of electors with special needs generally mirrors that of other electors when it comes to obtaining information at different stages in the electoral process and to being aware of an election. The vast majority of electors with disabilities also say they had no problems casting their ballots.

Detailed findings also show that Ontarians with disabilities were among the electors more likely to contact Elections Ontario for information or about a problem with the voting process or referendum, using either our web site or our toll-free numbers (21 per cent, compared to six per cent for electors in general). These results confirm the relevance of Elections Ontario’s continued emphasis on effective responsiveness to electors with disabilities in all our front line roles.

However, there are still challenges: a key finding of the survey is that compared to other electors, voters with disabilities report, in general, higher than average problems at voting locations. Forty-four per cent of voters with special needs said they experienced problems at their voting locations and 15 per cent said they had problems casting their ballots, a stark contrast to eight per cent and one per cent respectively for electors in general.

According to the survey, the main areas of concern are physical accessibility in the voting location, signage outside the place identifying the location, the process of voting including the assistance received from poll workers, privacy and the ability to communicate with staff. For students with disabilities, there is a lack of information about available services, voting processes and how, when and where to vote.

These results point to a need for continued focus on improving assistance and services for these Ontarians at the polls. For students with disabilities, the findings show Elections Ontario will need to focus on solutions to provide information with the same levels of effectiveness achieved for other electors with special needs...

…Feedback from stakeholders and electors.

As part of our post-election review, we received feedback from CNIB specifically as well as from the results of the post-event survey. The opportunity for stakeholder input is very much appreciated, and the progress Elections Ontario has achieved has been noted.

In terms of information availability, our post-event survey results indicated that 94 per cent of electors who are blind or visually impaired were knowledgeable about the voting process, a strong indication that our information focus was successful with these electors.

As for products and services, CNIB indicated that there have been improvements, including a successful new ballot template and larger print materials. Users reported mostly positive comments about the ballot, with a majority saying it worked well and they were pleased to be able to mark their ballot unaided. In addition, voters with low vision expressed general satisfaction with the larger print ballots.

Some of the challenges reported to our partners were difficulty fitting the ballot form into the Braille template and therefore having to receive assistance marking the ballot, as well as concerns that there was no way for users to independently confirm that they marked the ballot correctly without asking another person.

Twenty-nine per cent of the voters who are blind or visually impaired who responded to our survey said they had difficulties with the readability of the ballot and 18 per cent said they had difficulty casting the ballot.

According to CNIB, Braille users have also expressed a desire to see candidate lists in Braille. Elections Ontario offers this service during by-elections where the Notice to Voters is provided in Braille and includes the names of political affiliation of the candidates. However, our stakeholders understand that technical difficulties surrounding the production and delivery of Braille to meet the timelines required to get them to polling offices across the province cause this issue during a general election. Nevertheless, they urge Elections Ontario to continue to seek ways to resolve it.

While the necessity of tools in Braille is recognized, Elections Ontario is urged to take into account the fact that many people who are blind do not read Braille given that they lose their sight in their senior years.

In terms of service on polling day, among the voters who are blind who contacted Elections Ontario during the campaign period, 75 per cent were happy with the way the issue they raised was resolved, while 25 per cent said the issue was handled poorly.

Areas identified by our partners as requiring consideration for improvement include: clearer processes and instructions on election day; improved training for all staff in new requirements such as identification and proof of residence; and a focus on the needs of low vision voters in all Elections Ontario materials.”

We recommend a full review of that report, which is available at: http://www.elections.on.ca/NR/rdonlyres/B0EA045E-FDFA-41EE-A526-D799F90B7786/0/AccessibiltyReportEng.pdf

Second, during Second Reading debates on Bill 231 on March 3, 2010, Liberal MPP Helen Jaczek confirmed that she has seen inaccessible polling stations in her own riding, stating:

“…In terms of Bill 231, there are some aspects that I'm particularly happy about. As my colleague from Haliburton-Kawartha Lakes-Brock has stated, the issue of seniors and those with disabilities is particularly troubling. I well remember the last couple of provincial elections visiting polling stations and seeing the issue of several steps being required to go up or down in order to cast one's ballot. Certainly, there have been stories of individuals leaving their wheelchairs at the top of the stairs to somehow stumble down to, in fact, cast their ballot. This is a very difficult situation for many of those with disabilities and for seniors….”

During the three days of Second Reading debates, no MPP from any party voiced a contrary view, or claimed that there was no problem with the accessibility of polling stations to date.

Third, as the Toronto Sun reported on February 5, 2010, and as Elections Ontario eventually confirmed (after initially denying this), there was one identified polling station in the downtown Toronto riding of Toronto Centre which was an obviously inaccessible polling station. The February 5, 2010 Toronto Sun reported:

“Man in wheelchair has trouble voting in Toronto Centre by-election

By Antonella Artuso

Just a stone’s throw away from Queen’s Park — where legislators passed the Accessibility for Ontarians with Disabilities Act just a few years ago — Elections Ontario set up a polling station that could only be accessed by going down a flight of stairs.

Local resident John Wood told the Toronto Sun that he had to abandon his wheelchair and struggle with help down the stairs to cast a ballot in the Toronto Centre by-election Thursday.

‘Able to walk a bit’

“If I hadn’t been able to walk a little bit, I wouldn’t have been able to vote,” Wood said. “It’s totally, completely not wheelchair accessible.”

The polling station was in the lower floor gym of St. Joseph’s College School on Wellesley St. E. near Queen’s Park.

While the school has an elevator, there was no way to enter the voting room without travelling down stairs.

The elevator is accessed across an icy parking lot through two heavy sets of manual doors without automatic opening devices.

A spokesman for Elections Ontario told the Sun that the site is wheelchair accessible with an elevator that leads directly to the voting place.

Down stairs

During a Sun visit to the site Thursday, it was clear that voters could not enter the polling station without going down six stairs.

At that time, an electric wheelchair without an occupant was parked at the top of the stairs.

Shortly after, an elderly and frail gentleman leaning heavily on a walker arrived with his wife to vote.

A political scrutineer scrambled to assist the man up and down the stairs as he clung to the railing, while his wife held his walker.

“Good thing you came along,” the man said. “I don’t think I’d have made it.”

Wood said someone offered to bring his ballot to him but he believes there’s no excuse for the lack of accessibility.

“You’re supposed to put your ballot in the ballot box — you’re not supposed to have a second or third party, a stranger ... doing it for you. This is Canada. We don’t do that sort of thing.”

New standards

According to the Elections Ontario website, the public agency was required as of Jan. 1 to comply with new customer accessibility standards and takes seriously its obligation to provide services available to those without disabilities.

Wood said the setup on Wellesley St. W. was “disgraceful."

“I think in 2010, especially when we have someone like (disabled lieutenant governor) David Onley in Queen’s Park, that all voting places should be completely accessible for all handicaps,” he said.”

Fourth, on February 8, 2010, Ms. Cathy Crowe, the NDP candidate in the Toronto Centre February 4 by-election, reported to us that she had encountered other polling stations with barriers to full access. We had not solicited this information, and had had no prior contact with Ms. Crowe. We have no reason to doubt the sincerity or accuracy of her report to us. We forwarded her information promptly to Chief Electoral Officer Essensa by letter on February 9, 201, stating in material part:

"We received a February 8, 2010 email, set out below, from the NDP candidate in the February 4, 2010 Toronto area by-election. It describes information about other accessibility problems in that by-election, beyond the incident that the Toronto Sun has covered to date. It states:

“Hello, my name is Cathy Crowe. I was the NDP candidate in the Toronto Centre by-election Feb. 4. Prior to E-Day I held a press conference in St. Jamestown pointing out that 3 polling locations for 9,000 voters was not acceptable. On E-Day itself I personally visited 15 polling locations and discovered further impediments for voters. I was shocked to discover that one-third of the sites I visited were not fully accessible.

They were:

1) St. Simon's, 525 Bloor St. East. This location was only visibly and truly accessible from Bloor Street where you would have to walk in or be driven as it is elevated from street level. Here I witnessed several people lifting a person in a non-motorized wheelchair up steps on the north side. This voter had approached the polling station from the St. Jamestown community of the south. On the south site, on Howard Street there was another entrance to St. Simon's but no access from the street as curbs were not accessible. Inside the church voting was in the basement. There was an elevator.

2) Rose Avenue School, 675 Ontario St. Access to the gymnasium polling station was by a downward ramp on the north side. There were patches of ice. It was difficult to find the entrance to the polling station. Upon entry the inner doors were blocked by hula hoops that had fallen on the ground. Only one of the two inner doors was open. I asked a DRO staff to clear the area to improve access.

3) Wellesley Community Centre, 495 Sherbourne St. There are stairs to this main floor gym polling station. Other flat access is far to the rear, involving a long hike around to north entrance to gym. I did not see signage to demonstrate this access.

4) St. Martin's Public School, 55 Salisbury. Steps to front entrance. DRO and Security Guard were not able to show me better access - then suggested it was to north and rear of school through parking lot. No signage to this effect.

5) St. Joseph's College School - basement site. Many stairs. Basement was about 40 degrees Celsius. Workers there were impacted by heat. I was unable to find better access. This is the site the SUN reported on.

I did take some pictures of several of the sites but my camera disappeared. They could be easily duplicated.

I will certainly follow-up as you have suggested.

We write to ask what Elections Ontario’s position is regarding the specific information set out in that email. We would appreciate hearing back from you as soon as possible on this important issue.”

(b) The Law Now Requires Fully Accessible Polling Stations

It should be obvious that our law now requires fully accessible polling stations. The Election Act guarantees in s. 13(8) that: “Every elector shall have free access to the poll.”

More generally, s. 13 provides in material part:

“Polling places

13. (1) Subject to subsections (2), (3), (3.1) and (5) and to section 14, the returning officer shall arrange for at least one polling place for each polling division, furnished with light, heat and any other accommodation and furniture that may be required. 2007, c. 15, s. 4.

Same

(2) The returning officer may unite two or more adjoining polling divisions and provide one polling place for the resulting united polling division. 2007, c. 15, s. 4.

Same

(3) With the Chief Electoral Officer’s approval,

(a) a polling place may be provided outside the limits of its polling division; and

(b) one polling place may be provided for two or more polling divisions. 2007, c. 15, s. 4.

Criteria re location of polling places (3.1) In the selection of polling places under subsections (1) and (6), the following factors shall be considered:

1. A location’s convenience for electors.

2. A location’s capacity.

3. The extent to which electors are likely to be familiar with a location.

4. Any significant geographic barriers that electors will encounter in reaching a location.

5. Any other factors that may be relevant to the proper conduct of the election. 2007, c. 15, s. 4.

Same

(3.2) A polling place may be situated in any public building or on private property. 2007, c. 15, s. 4.

Saving

(3.3) Nothing in subsection (3.1) affects the obligation to comply with the Human Rights Code and with accessibility standards established under the Accessibility for Ontarians with Disabilities Act, 2005. 2007, c. 15, s. 4.

When landlord, municipality, school board, etc., to furnish facilities

(4) Where, in the opinion of the returning officer, it is necessary to ensure to the maximum number of electors access to conveniently located polling places,

(a) a landlord of a building containing 100 or more dwelling units;

(b) a municipality;

(c) a school board; or

(d) a provincially funded institution,

shall, on the request of the returning officer made not less than fourteen days prior to polling day, make any premises under his, her or its control available as a polling location.

Same

(4.1) A municipality, school board or provincially funded institution that makes premises available under subsection (4) shall do so free of charge.

Where polling places not to be

(5) The poll shall not be held in a premises licensed under the Liquor Licence Act or in a place of public entertainment, except as authorized by the Chief Electoral Officer.

Additional polling places

(6) The returning officer may provide such additional polling places in any polling division as are required having regard to the extent of the division, and the number of electors that may conveniently vote at one polling place and the returning officer shall determine how each such polling place shall be designated and an elector is entitled to vote only at the appropriate polling place.

List of polling places

(7) The returning officer shall prepare a list of the polling places within the electoral district showing the location of each by polling division number.

Access to poll

(8) Every elector shall have free access to the poll.

HOSPITALS, RETIREMENT HOMES, NURSING HOMES AND OTHER INSTITUTIONS

Polling places in hospitals, etc.

14.--(1) Where an institution for the reception, treatment or vocational training of persons who have served or are serving in the Canadian Forces or who are disabled, a hospital, a psychiatric facility, a home for the aged, a nursing home or other institution of twenty beds or more, in which chronically ill or infirm persons reside or where a retirement home of fifty beds or more is situate in an electoral district, a polling place shall be provided in such institution or upon the premises.

Voting

(2) Electors resident at an institution referred to in subsection (1) and who are entered in the list of electors may vote at such polling place and the returning officer shall arrange for the deputy returning officer and the poll clerk to attend upon the electors at their bedsides or otherwise for the purpose of receiving their ballots. R.S.O. 1990, c. E.6, s. 14 (1, 2).

Continuation of poll

(3) On the completion of their canvass of the residents, the poll officials may continue the poll in one location until full opportunity has been given for all resident electors to vote. R.S.O. 1990, c. E.6, s. 14 (3).”

Section 3 of the Canadian Charter of Rights and Freedoms, part of Canada’s Constitution, guarantees:

“Democratic rights of citizens

3. Every citizen of Canada has the right to vote in an election of members of the House of Commons or of a legislative assembly and to be qualified for membership therein.”

As well, Section 15(1) of the Charter guarantees to every individual equality before and under the law”. It also guarantees the right to the “equal protection and equal benefit of the law without discrimination, and in particular without discrimination based on …mental or physical disability.”

These laws, together with the Ontario Human Rights Code, clearly require that when a returning officer in a riding chooses the location of a polling station, it must be accessible to voters with disabilities. The essence and thrust of the Ontarians with Disabilities Act 2001 and the Accessibility for Ontarians with Disabilities Act 2005 amplifies this.

On February 12, 2010, the Canadian Human Rights Tribunal rendered a landmark ruling on the rights of voters with disabilities to accessible polling stations during federal elections. Hughes v. Elections Canada applies the Canadian Human Rights Act. This important victory on the road to fully accessible elections applies equally to Ontario, in our view. If a voter with a disability in Ontario encountered inaccessible polling stations, a comparable complaint could be filed under the Ontario Human Rights Code. To see the entire Hughes decision, visit: http://www.aodaalliance.org/strong-effective-aoda/02122010b.asp

This decision, though focused on federal elections, speaks about issues which the AODA Alliance continues to raise at the provincial level regarding the rights of voters with disabilities in provincial and municipal elections.

What happened to Mr. Hughes? The decision said:

“[9] On March 17, 2008, he proceeded using his walker to vote at St. Basil's Church. The Church is in a beautiful, old building in downtown Toronto. It has three entrances: entrance #1 (main one, south side); entrance #2 (back one, north side); and entrance #3 (side one, west side). More will be said about the three entrances later in these Reasons.

[10] From the street, the Complainant walked up a sloped hill on a long, winding path to entrance #1. At the front door was "a perfectly acceptable handicap ramp," said the Complainant. He said he found some "cryptic, yellow" EC signs, but they pointed away from entrance #1 and toward entrance #3. Entrance #1 was locked. Said signs indicate to me as well that EC (at least the official who put up the signs) was aware that entrance #1 was locked and unusable as an accessible entrance, for disabled and non-disabled voters. Mr. Hughes proceeded around the building to entrance #3. When he opened the door, he was somewhat startled to find a flight of stairs leading downward. It was clearly not an accessible entrance.

[11] Mr. Hughes was not able to get down the stairs without assistance. He called out for assistance and someone came over. The person appeared to be an EC official and told him he could either come down the stairs or walk around the building (to entrance #2). He chose to deal with the known obstacle rather than face the unknown ones. The official took his walker down the stairs and Mr. Hughes then proceeded to go down the stairs "on the seat of my pants." The Complainant testified that this was rather humiliating. He was concerned as well about falling. They then put the walker back together and he walked down the hallway to the election polling stations in the basement hall.

[12] His experience with inaccessibility did not end there. When in the hall, he was not able to vote in the polling booth because the tables were placed too close together, blocking his path. EC officials had to re-arrange the tables. A person using a walker or wheelchair did not have a direct pathway to the private voting booth.

[13] While in the Church basement hall, Mr. Hughes told a male EC official about his "difficult voting experience." He does not remember the name of the official. Mr. Hughes averred that the person replied that the lack of accessibility was for financial reasons and that "in federal by-elections they are not given sufficient funds to have an accessible polling station." Mr. Hughes was "appalled". EC avers that if this in fact occurred, the official was factually wrong and was not in a position to make such comments. Nothing came of his verbal complaint. I accept Mr. Hughes' testimony on this topic.

[14] Mr. Hughes eventually got to mark his ballot that day. However, his departure was no less easy. Rather than go back through entrance #3 with its barrier-ridden path, the EC officials offered to help this voter with a disability leave through the back way, entrance #2, adjacent to the parking lot. Mr. Hughes had to walk up a "steep, narrow ramp". It was only "marginally possible" for use with his walker. The two doors leading out to the parking lot weren't open. There was no automatic opening mechanism for the doors. Mr. Topping, who did an onsite inspection on behalf of EC and gave expert opinion evidence at the hearing, agreed that they are heavy, steel doors. Only one of the two double doors was operable. Mr. Hughes' walker had to be folded in order to get it through. Outside the doors, he confronted snow on the ground which hadn't been sufficiently cleared. He stated that the width shovelled looked like it had been done with ambulatory people in mind. It was barely wide enough for his walker's wheels, and certainly not wide enough for a person using a wheelchair. There was a sloped ramp downward. He described it as steep and slippery. I accept Mr. Hughes' testimony that he could not have exited through entrance #2 without assistance.

[15] Mr. Hughes described the entrance at the back as a "freight/emergency entrance". In his view, it was demeaning and not dignified. He remarked that it doesn't affirm a person as an actual person, but signals they should be handled as freight. I accept that he felt this way. There was a debate among counsel as to whether this constituted a segregated entrance, reminiscent of the images of the Old South in the United States. I make no finding in this regard. Suffice to say, the back entrance was not ideal or acceptable in the circumstances. None of the three entrances to the Church was accessible to Mr. Hughes. Entrance #1 was closed; entrance #2 was fraught with barriers (physically and symbolically); and entrance #3 was inaccessible due to the flight of stairs.”

It later states: “To his chagrin, the Complainant said he experienced the same lack of accessible voting on October 14th, except for the snow on the ground. When he went to St. Basil's, the front door (entrance #1) with its accessible ramp was again unavailable. This time he proceeded to entrance #2, where he found one of the doors was being held ajar by a broken rock. The Complainant testified that he could not open the heavy steel door himself. With assistance, he entered via entrance #2, voted and left the same way.”

The Tribunal reached these important findings:

“(1) EC (Elections Canada) denied the Complainant barrier-free access to voting in both the 2008 by-election and general election in that not one entrance was accessible to a person with the disability that Mr. Hughes has;

(2) EC denied him a service and adversely differentiated against him in its sub-standard investigation of his verbal and written complaints to it. EC didn't even record his March 17th election day verbal complaint. EC's response to his written complaint to it and his CHRA Complaint was tardy and inaccurate, and its tone dismissive. It is disappointing that in its August 6th letter to the Commission addressing the CHRA Complaint (five months after his complaints to EC), EC made so many factual errors. The most glaring one was that all three entrances "were unlocked during voting hours." Notwithstanding EC said in the August 6th letter that in the course of its review of his complaint "election officers were interviewed and an on-site inspection of the polling station was conducted", no one at EC's national headquarters in Ottawa realized that the only accessible entrance (main, front door #1) had been locked on election day until November 2008 when the investigation was completed, according to Mr. Roussel's testimony. But the August 6th letter states that EC's investigation had been completed by then. Had EC done a competent investigation sooner, it no doubt would have realized this fact and rectified it for the October 2008 general election by either contacting St. Basil's Church and making sure it kept the door unlocked on election day or seeking out a different (and accessible) location. I accept Mr. Hughes' evidence that EC's poor handling of his verbal and written complaints to EC and his Complaint to the Commission, including the tone and content of the August 6th letter, upset him as much or more than the actual two voting events.”

The significant remedies that the Canadian Human Rights tribunal ordered include:

“Compensation and Interest

(1) EC shall pay Mr. Hughes $10,000 for the pain and suffering experienced as a result of the discriminatory practice, per paragraph 53(2)(e) of the CHRA, plus interest on the above amount, pursuant to rule 9(12) of the Tribunal's Rules of Procedure and subsection 53(4) of the CHRA.

Monitoring, Consultation, etc.

(2) As per the Commission's offer, it will monitor the implementation of this Order, and any subsequent implementation Orders. EC will consult with the other parties (i.e., the Commission, the Complainant and CCD) about various aspects of my Order, including the implementation of them. EC will pay the reasonable expenses of CCD and the Complainant to participate in the implementation phase, but not legal fees in this proceeding. Greater Consultation with Voters with Disabilities

(3) Within six months, EC shall formulate a plan for greater consultation with voters with disabilities and disability groups, upon discussion with the other parties.

Cease Order

(4) EC shall cease from situating polling stations in locations that do not provide barrier-free access in any electoral district in Canada, within the meaning of section 5 of the CHRA. This is subject to the standard of bona fide justification and the duty to accommodate to the point of undue hardship under paragraph 15(1)(g) and subsection 15(2) of the CHRA respectively, once a prima facie case of discrimination has been established.

Verification of Accessibility of Facilities

(5) Within six months, EC shall implement a procedure for verification of the accessibility of facilities on the day of an electoral event, and consult with the other parties about same.

Policies and Guidelines

(6) Within twelve months, EC shall review the Accessible Facilities Guide, Accessibility Checklist, and accessibility sections of the Manuals for the Returning Officers and the other categories of election workers (i.e., AROs, CPSs, DROs, Poll Clerks, Information Officers and Registration Officers). EC shall consult with the other parties about same.

Standard Lease for Polling Locations

(7) Within six months, EC shall revise its standard lease for polling locations to include the requirement that the leased premises provide level access and are barrier-free. EC shall consult with the other parties about same.

Signage at Polling Locations and Stations

(8) EC shall provide sufficient and appropriate signage at elections, including the universal accessibility symbol so that voters with disabilities can easily find the shortest and most appropriate route to all accessible entrances at polling stations. EC shall consult with the other parties about same.

Training

(9) Within twelve months, EC shall review, revise and update its training materials and programs concerning accessibility issues for ROs and officials below them. Training should be given to every officer or employee who deals with disability and accessibility issues, including the CEO and senior management, the accessibility officers at national headquarters, the ROs and others in the electoral districts. The training may be customized to the individual, depending on his/her responsibilities at EC. EC officials shall be trained also on the new public complaints process. The materials will also include these Reasons for Decision or a summary thereof, and a case study made from it for training purposes. EC shall consult with the other parties about same.

Accessibility Complaints Process

(10) Within six months, EC shall implement a procedure for receiving, recording and processing verbal and written complaints about lack of accessibility. It should also be suitably publicized (e.g., in polling stations, on the EC website, on the Voter Information Card). It should include the tracking of complaints and their disposition. The number of complaints received about accessibility issues should be publicly reported. EC shall execute this reporting requirement for a period of three complete general election cycles, in the CEO's post-election report to Parliament, and as per the terms set out in its counsel's October 23, 2009 letter to the Tribunal. EC shall consult with the other parties about same.

Three Month Suspension If Election Called

(11) The timelines and activities concerning the above remedies shall be suspended for a period of three months in the event of a general election, except for the award of compensation and interest, and the cease order.

EC to Report to Tribunal

(12) EC shall report to the Tribunal in at least three-month intervals about its progress in implementing this Order.

Tribunal Staying Seized

(13) The Tribunal will remain seized in this matter to the later date of the reporting of accessibility complaints by EC after the next general election and the implementation of the other parts of this Order, including any further implementation Orders as required.”

( c) “Trust Elections Ontario” Not Sufficient

The Election Act is designed on the bedrock principle that Ontarians, including Ontarians with disabilities, should simply trust Elections Ontario to do the right thing when it comes to ensuring accessibility, including accessible polling stations, for voters with disabilities. It leaves it to each returning officer in each riding to pick the right place for a polling station. It leaves it to Elections Ontario to decide how much training to give returning officers and when to give that training. It leaves it to Elections Ontario to decide how much oversight, if any, to provide for returning officers when they decide where to locate polling stations. It provides no means for Ontarians to enforce the requirements of accessibility, or to ensure in advance that polling stations will be accessible. To enforce accessibility, voters with disabilities must file human rights complaints, bring an action under the Charter of Rights, or try to bring a proceeding under the Accessibility for Ontarians with Disabilities Act’s Customer Service Accessibility Standard (for which the Ontario Government has not yet implemented the promised enforcement mechanism). In short, it does not contain effective safeguards to ensure that Elections Ontario does the right thing.

Bill 231 in general merely expands the philosophy of “trust Elections Ontario”. It gives Elections Ontario several new powers over Ontario elections. It leaves it Elections Ontario to decide how and when to use those powers. It adds no meaningful oversight, public accountability, or enforcement, with one marginal exception. The Election Act and Bill 231 require in some instances that Elections Ontario create a public report after the fact.

The mere requirement that Elections Ontario publicly account for some of its conduct after the fact, including in the area of providing for accessible elections, has proven itself to be entirely inadequate. Elections Ontario was required to publicly account for its efforts on accessibility in the 2007 election. As this brief showed earlier, that report included sweeping claims of great efforts on Elections Ontario’s part on accessibility. Yet over 40% of voters with disabilities canvassed reported encountering accessibility problems. That shocking report should have led Elections Ontario to massively revamp its efforts on accessibility, to ensure that such problems did not repeat. Yet as shown earlier, two and a half years after that general election, in the 2010 Toronto Centre by-election, problems with the accessibility of some polling stations were reported.

Moreover, Elections Ontario’s response to the problems with the February 4, 2010 by-election further show why “trust Elections Ontario” is no solution. When the Toronto Sun investigated the complaint of one inaccessible polling station in the February 4, 2010 by-election, Elections Ontario initially denied to the Toronto Sun on the record that there was any accessibility problem. The February 5, 2010 Toronto Sun reported: “A spokesman for Elections Ontario told the Sun that the site is wheelchair accessible with an elevator that leads directly to the voting place.” In our February 8, 2010 letter to the Chief Electoral Officer, we asked Elections Ontario to explain how Elections Ontario came to give out that inaccurate information to the media, and what consequences there would be for the official that did this. Elections Ontario has never answered that inquiry.

As set out earlier in this brief, our February 9, 2010 letter to Elections Ontario reported on the further accessibility problems at other February 4, 2010 by-election polling stations, described to us by candidate Cathy Crowe. In that letter, we asked Elections Ontario for its position on those additional reported accessibility problems. Elections Ontario has not answered that request, despite the fact that we reiterated our request for a specific response to those concerns in two successive emails to the Chief Electoral Officer, two conversations with his executive assistant, a further letter to the Chief Electoral Officer dated March 12, 2010 and two efforts to get the Chief Electoral Officer to speak to us on the phone. (See appendix 2) We have emphasized to Elections Ontario that the Standing Committee on the Legislative Assembly, considering Bill 231, would want to know Elections Ontario’s position on this.

Elections Ontario’s explanation of the one polling station whose inaccessibility it eventually acknowledged is troubling. On February 5, 2010, the Chief Electoral Officer wrote us via email in material part:

“Since our meeting, an unfortunate situation occurred in the Toronto Centre by-election where a voter had trouble accessing a poll to cast his ballot. I’m relieved that the voter managed to vote, but the challenges he experienced and the challenges others may have faced disappoints me.

As your members are well aware, we face challenges throughout the province finding accessible voting locations. Until the province becomes fully accessible, insight such as yours will help us make accommodations that meet the needs of electors with disabilities.

I recognize the history of discrimination against persons with disabilities in the province, and the fundamental importance of developing, implementing and enforcing standards in order to achieve accessibility for Ontarians with disabilities.

We are actively addressing barriers all Ontarians face in the electoral process. These challenges range from informational to physical and geographical. However, an important step forward to addressing these challenges is through partnerships with organizations such as yours.

As the Chief Electoral Officer of Ontario, I am committed to improving elections in this province for all Ontarians who may experience barriers to voting, including electors with special needs. I share your concerns and am dedicated to achieving equitable access to voting for all.”

We promptly communicated to Elections Ontario our concerns with its explanation for that inaccessible polling station. In our February 8, 2010 letter to the Chief Electoral Officer, we wrote:

“I regret that your response to this incident which we received via email on February 5, 2010, seems to exaggerate the difficulty facing Elections Ontario in ensuring accessible polling locations. You wrote: “As your members are well aware, we face challenges throughout the province finding accessible voting locations. Until the province becomes fully accessible, insight such as yours will help us make accommodations that meet the needs of electors with disabilities.”

We have no indication that this incident was due to any difficulty on Elections Ontario’s part in finding a fully accessible venue for this polling station. This by-election occurred in a densely-developed, downtown Toronto urban riding. No matter how many inaccessible buildings there may be, it should be especially easy to find an accessible venue in such a riding.

We have told Elections Ontario in the past that we are happy to provide input on elections accessibility issues. However, in 2010, Elections Ontario should not need our input to know that if one must traverse several stairs to get to a polling station, that polling station is not accessible to persons with disabilities.

Additionally, Elections Ontario has ample time to find accessible venues for polling venues. You now know when the next general election will be. Even in the case of by-elections, there is sufficient time to ensure that venues selected for polling stations are fully accessible.

In your February 5, 2010 email to us, you also wrote:

“We are actively addressing barriers all Ontarians face in the electoral process. These challenges range from informational to physical and geographical. However, an important step forward to addressing these challenges is through partnerships with organizations such as yours.”

We are delighted to partner with you and to do whatever we can to help you reach out to the broader disability community. However, I must emphasize that we have had this same discussion with Elections Ontario officials over the past decade. We have agreed to “partner” over and over again, and have offered our services to reach the disability community. It is time to stop re-inventing that same wheel, and to get on with implementing effective solutions.”

Elections Ontario’s further effort at explaining this incident was also troubling. Chief Electoral Officer Greg Essensa wrote us again on February 19, 2010 providing a further explanation of the single inaccessible polling station in the February 4, 2010 Toronto centre by-election that Elections Ontario has acknowledged. He stated in material part:

“In follow-up to my letter of February 5, 2010 I’m writing today with respect to the February 4, 2010 story titled “Man in wheelchair has trouble voting in Toronto Centre by-election”.

The voting location was selected for being accessible but at the last minute the school moved the room in which the polls were stationed. Elections Ontario was advised the room was accessible. However, the morning of the election our workers found this not to be the case and then made other appropriate accommodations for electors with limited mobility. Had this change been known earlier, we could have done more to assist electors on polling day.

We are reviewing the matters you have raised in your letters to determine how we can better serve electors.”

Elections Ontario has not explained how a school principal was permitted to exercise a unilateral decision to relocate a polling station from an accessible part of the school to an inaccessible part of that school. It does not appear to us that the principal has such authority under the Election Act. The Elections Ontario officials on the scene should have directed that the polling station not be located down several stairs. If the school did not comply, the polling officials should have contacted Elections Ontario to immediately intervene to correct the situation on the spot. Section 13(4) and (4.1) of the Election Act entitle Elections Ontario to select a location such as a school and designate it as a polling station, on sufficient notice to the school. If that provision is not strong enough, then there is need for a strong amendment to prevent such from happening again.

Mr. Essensa also claimed in this letter that when Elections Ontario learned on the by-election voting day that the room was not accessible, their officials “made other appropriate accommodations for electors with limited mobility.” The Toronto Sun reported that voters with disabilities had to go down six stairs, and some had to be assisted by polling officials, leaving their wheelchairs behind.

Elections Ontario’s response here signals a fundamental failure to understand key rudiments of the duty to accommodate persons with disabilities. With respect, this treatment of voters with disabilities is not “appropriate accommodation”. It risks physical injuries to voters with disabilities. It denies them the dignity and respect that fully accessibility provides. Voters without disabilities do not have to undergo such treatment just to exercise their constitutional right to vote.

We regret that this recent by-election is not an isolated incident. In our April 28, 2009 presentation to the Legislature’s Select Committee on Elections, former AODA Alliance Chair Catherine Tardik offered a unique former-insider’s perspective on Elections Ontario’s approach to disability accessibility in the 2007 general election. In reading her remarks, it is important to emphasize that the 2007 election occurred two years after enactment of the Accessibility for Ontarians with Disabilities Act. Ms. Tardik told the Select Committee:

“As a former employee of Elections Ontario’s communications department, I had the unique opportunity to view the accessibility features espoused during the 2007 provincial election and referendum from a good vantage point. Part of my duties during the 2007 election and referendum included working on a variety of projects aimed at supporting Elections Ontario’s accessibility features, specifically the information kits for electors with special needs, arranging for large print and for Braille printing of householders, contacting stakeholder organizations and contributing to the training manual for Elections Ontario staff. During my remarks, I’d like to outline some of the challenges in relation to the accessibility of provincial elections.

In 2008, Elections Ontario completed a report on accessibility that speaks to the accessibility goals and outcomes of the 2007 election. This report includes details of Elections Ontario’s efforts to achieve full accessibility. If you read it, it sounds very promising. Some of the measures it describes included providing targeted information to special needs populations; accessibility at advanced polls and returning offices; reaching out to stakeholder organizations to provide them with election kits; updating the TTY phone system to incorporate new web technologies for persons who are deaf, deafened or hard of hearing; providing Braille householders and householders on tape; training call centre staff to answer questions related to accessibility; and, last but not least, providing training specific to accessibility for poll officials.

I can attest that Elections Ontario planned to provide accessibility features during the 2007 election. However, intention is not the goal; delivering accessibility is the goal. Unfortunately, the way Elections Ontario acted on these initiatives clearly and significantly limited the outcome’s effectiveness. This resulted in inconsistencies and service delivery gaps. The troubling result is documented in the aforementioned report on accessibility. The report claims that Elections Ontario received 100% accessibility at returning offices and advanced polls and 98% accessibility at poll locations on voting day.

Unfortunately, this optimism is flatly contradicted by the results of an independent survey detailed in the report that was completed by Ipsos Reid on behalf of Elections Ontario. According to the statistics found in the Elections Ontario accessibility report, the Ipsos Reid survey revealed that a very troubling percentage of electors with special needs reported facing barriers when participating in the electoral process. …(She recited the survey results quoted earlier in this brief and then continued)

…Given my first-hand experience working as an employee of Elections Ontario, it is my assessment that the Ipsos Reid statistics provide an accurate depiction of accessibility features during the 2007 election and referendum. In 2007, this outcome is simply unacceptable.

To illustrate my assessment, I will address two service delivery gaps: first, choosing accessible poll locations. The current Elections Act and Elections Ontario policy related to sourcing accessible returning offices and poll locations indicates that this duty is the responsibility of the returning officer in each riding. Based on my observations during the 2007 election, returning officers did, in fact, choose these temporary locations. However, it should be pointed out that returning officers made these decisions without training outlining how to best determine accessibility features of temporary locations, or with any reliance on best practices from other jurisdictions. When it came to accessibility training, returning officers and poll officials received training consistent with general special needs training concerning assisting electors with special needs. This training was provided to all Elections Ontario front-line staff, including the call centre. With regard to the training for the call centre, I can speak specifically to that as I was asked to provide the training to those staff members only two days prior to Election Day.

Second, an important accessibility feature that was promoted in advance of the election was not in working order on Election Day. TTY services enable persons who are deaf, deafened or hard of hearing to directly communicate with others over the phone. The updated TTY technology that was put in place for members of the public to call did not work properly during Election Day. Approximately 40 TTY calls were left unanswered due to technical difficulties. Unfortunately, the call centre staff did not provide this information to the communications department or the IT department until after the polls had closed. Thus, it was not possible to fix the problem until it was too late.

Given my experience specific to the accessibility features offered during the 2007 election and referendum and the results of the Ipsos Reid independent survey, it is clear that Elections Ontario failed to fulfil its mandate to ensure consistent accessibility features for electors with special needs.”

The problem is not a lack of professed commitment by Elections Ontario to accessibility. The current management at Elections Ontario has committed to us that accessible elections are a high priority for Elections Ontario. However, the same commitment has been made by prior Elections Ontario administrations over the past decade.

(d)) Principles that should be Incorporated in Bill 231

Bill 231 should spell out in very concrete terms the requirements for polling stations to be accessible, including specifying as much as possible the accessibility requirements that should be incorporated into polling stations. It should not be left to the unfettered discretion of Elections Ontario or of individual returning officers to decide what accessibility requirements are needed and whether to include them all. Once an accessible location for a polling station is designated, no one should have authority to unilaterally move it to an inaccessible location.

It is also vital to put in place a system for monitoring and enforcing these accessibility requirements, and for ensuring they are honoured in advance of election day. It is insufficient to only have after-the-fact remedies. If a voter with a disability shows up on election day at a polling station that turns out to be inaccessible, that voter can suffer irreparable harm --- losing his or her right to vote. If that voter used para-transit to get to the polling station, he or she will likely not be able to schedule another para-transit ride to another polling station before election day is over. They cannot show up the next day to vote. The election will be over.

There should be a system for enforcement that is independent of Elections Ontario. There also needs to be real and significant consequences for contraventions. The denial of fundamental constitutional rights like the right to vote is a serious intrusion on a fundamental entitlement in our democracy. The Canadian Human Rights Tribunal ordered that a voter with a disability be paid $10,000 in damages for the individual denial of his human rights arising from accessibility problems at a federal polling station. If Bill 231 is not amended to enshrine these principles, the kind of remedies that were ordered by the Canadian Human rights Tribunal would also be open to the Ontario Human Rights Tribunal. As indicated earlier in this brief, past experience shows that the requirement in the Election Act of having Elections Ontario report after the fact on the steps it took to respect the accessibility needs of voters with disabilities is grossly insufficient to ensure full respect for these democratic rights.

We therefore recommend that:

#7. The bill be amended to institute detailed requirements to ensure full accessibility of all polling stations in any Ontario election or by-election. These amendments should establish bedrock accessibility requirements for polling stations, such as requiring that Elections Ontario ensure that in establishing the locations of voting places, each voting place is fully accessible to electors with disabilities, including, without limiting the generality of the foregoing that:

a) there is level access to a plainly visible public entrance to the building in which the voting place is to be located, without a voter needing to ascend or descend any stairs, and that there is unobstructed level access within no more than 25 meters from the road to that entrance to that building;

b) There is level unobstructed access from the accessible entrance to the building to the voting place within the building, without a voter needing to ascend or descend any stairs;

c) Any doorway from the outside of the building, and inside the building on the route to the voting place within the building is sufficiently wide to enable a person using a mobility aid to pass through;

d) a building where a voting place is to be situated is, to the extent feasible, located within no more than 100 meters of a regular route stop for an accessible public transit vehicle on a conventional bus route, and within 100 meters of designated accessible parking for persons with disabilities, whether permanently designated, or designated for that purpose during Election Day (with proper signage showing that designation);

e) An elector need not travel more than 50 meters after entering the building to reach the voting place within the building;

f) Any walking route to access the voting place will be unobstructed, including being free of any signs, snow, ice or other obstruction.

g) The voting place will have sufficient lighting to accommodate the needs of persons with low vision.

h) To the extent feasible, the polling place with be operated to minimize exposure to artificial fragrances.

#8. The Bill be amended to:

a) require Cabinet to enact regulations by March, 2011, further specifying accessibility requirements for polling stations, after proper consultation with the public, including Ontarians with disabilities and

b) require Cabinet to review those regulations, after further input from the public including Ontarians with disabilities, after the 2011 Ontario General election.

#9. The bill be amended to authorize Elections Ontario officials including a returning officer to designate that a proportion of pre-existing parking spots on public roads or publicly-accessible parking spots, near a polling station, be designated disability parking spots for purposes of the election or advanced poll.

#10. The bill be amended to prohibit anyone from doing anything that directly or indirectly leads to a polling station being placed in or moved to an inaccessible location.

#11. The bill be amended to incorporate detailed mandatory procedures to ensure in advance that polling stations will be fully accessible in accordance with the Act, including:

a) requiring Elections Ontario to make very public no less than six months before the date fixed for the election the proposed locations for voting places, including specifics on steps taken to ensure its accessibility, including posting this information on an internet site that is accessible to persons with disabilities, and shall invite public feedback on whether these proposed locations are sufficiently accessible;

b) Establish and widely publicize an elections accessibility hotline during the six month period before and during voting day, for voters and candidates with disabilities to give feedback on proposed locations for voting places, and to give feedback and present inquiries on any accessibility problems;

c) Review the proposed locations of voting places in light of feedback received and make a final determination no later than 60 days before the election of the location of polling places. Where Elections Ontario decides not to move a proposed polling station despite objections to it having been received on grounds of accessibility concerns, Elections Ontario should be required to make public its reasons for refusing to alter the polling station’s location;

d) provide for an avenue of immediate appeal for any decision by Elections Ontario on the location of a polling station, to be heard on an expedited basis, that may be brought by a person who lodged a timely complaint with Elections Ontario about a proposed location, if Elections Ontario did not move that proposed polling station to a fully accessible location. The body to which the appeal will be brought should have the authority to order the relocation of the proposed polling station;

e) ensure that any returning officer’s office in any riding is accessible to persons with disabilities, and provides TTY services for callers with hearing loss. f) provide for remedies including compensation for any voter who is denied an opportunity for fully accessible voting by Elections Ontario’s conduct of the election, including, without limiting the generality of the foregoing, the failure to provide a fully-accessible polling station.

2. Fully Accessible Ballots

In addition to any accessible voting technology that may be deployed, it is important to ensure that paper ballots are designed to be as accessible as possible.

In the past, Elections Ontario provided a template/overlay that a voter with vision loss could use, with holes cut out where one could mark one’s vote. However, it was not possible for a voter with vision loss to ensure that the holes were properly lined up, and to check to ensure that they had marked their vote solely within the space allotted for a vote. A voter with vision loss, using that template, could inadvertently spoil their ballot and never know it. To be certain, those voters had to ask a sighted person to check their ballot. That infringed on their privacy.

Elections Ontario should be required to use a font that is large enough and clear enough to ensure that it is easy to read for as many voters as possible, including voters with low vision.

We therefore recommend that:

#12. The bill be amended to require that all ballots use a large print clear font to enable as many voters with low vision as possible to mark them independently.

3. Broader Accessibility Planning

It would be very helpful to institute a regime that requires Elections Ontario to undertake more extensive accessibility planning, to make public its accessibility plans for an upcoming election well enough in advance, and to afford Ontarians, including persons with disabilities, with an opportunity to call on Elections Ontario to do more than it had planned to do. These are all worthwhile practices for any major public agency. They are especially important where, as here, there is a track record revealing a pressing need for improvement.

We therefore recommend that:

#13. The bill be amended to require Elections Ontario to make public by January 1, 2011, and thereafter, by January 1 of each year in which a general election is scheduled by fixt term to be held, including on an accessible website, its proposed plan for ensuring the full accessibility of the upcoming election, including, without limiting the generality of the foregoing, the steps it plans to take to:

a) ensure the accessibility of all polling locations;

b) ensure the accessibility of ballot and of voting procedures, including the right to independently mark one’s ballot and to verify the voter’s choice;

c) the accessibility of all returning offices, and

d) the accessibility of other services to be offered by Elections Ontario during the campaign;

#14. The Bill be amended to require Elections Ontario to invite input from the public, including from persons with disabilities, on its proposed accessibility plan, and requiring Elections Ontario, no later than June 1 of that year, to make public as summary of feedback received, and the additional steps, if any, it plans to add to its proposed accessibility plan for that election.

At present, s. 55.1 of the Election Act requires Elections Ontario to undertake certain general reporting to the public on the steps it took in the preceding election regarding accessibility. Section 55.1 provides:

“Report on accessibility

55.1 (1) Within three months after polling day in the election, every returning officer for an electoral district shall prepare a report on the measures that the officer has taken to provide accessibility for electors with disabilities in the district and shall submit the report to the Chief Electoral Officer.

Availability to the public

(2) The Chief Electoral Officer shall make the report available to the public.”

This provision needs to be strengthened.

We therefore recommend that:

#15. The bill be amended to require that

a) reports of each returning officer on accessibility steps, now provided for in s. 55.1 of the Election Act, must be posted on an accessible website;

b) Within four months after voting day in a regular election, Elections Ontario shall also make public a comprehensive report, including posting it on an internet site in a format that is accessible for persons with disabilities, about the identification, removal and prevention of barriers that affect electors and candidates with disabilities, which shall include:

i) The steps that Elections Ontario took to ensure that the election was accessible for electors and candidates with disabilities;

ii) the results of an independent survey of candidates and electors with disabilities on any barriers or difficulties they experienced when taking part in the election;

iii) A summary of any complaints or feedback received from electors or candidates with disabilities during the election regarding the accessibility of the election, and steps taken to address these, and

iv) Recommendations of any steps that need to be taken to ensure that the next election will be fully accessible to electors and candidates with disabilities.

4. Accessibility Of Campaign Offices

At present, the Election Act does not require candidates’ campaign offices to be accessible to persons with disabilities. Candidates have ample choices over where to locate their campaign offices. They should be required to choose an accessible location. This is in the candidate’s interest, since it enables all voters to come and meet the candidate or obtain their literature from their campaign office if they wish.

We therefore recommend that:

#16. The bill be amended to require that candidates select an accessible location for his or her campaign office.

5. Accessible Campaign Literature, Websites and TV Ads

Accessible information and communication is a core right under the Human Rights Code. Voters with disabilities should be able to have full access to each party’s campaign literature, websites and TV ads. Each party has a strong interest in making these fully accessible to voters with disabilities, since each party produces these to try to win Ontarians’ votes.

Especially in the case for general elections, which are now held on fixed dates, as well as for most by-elections (since they are not called on a snap basis), parties have ample time to make these materials accessible.

We therefore recommend that:

#17. The bill be amended to:

a) Require each party’s and candidate’s campaign website to be accessible to voters with disabilities in accordance with the W3C Consortium’s WCAG 2.0 Level AA Guidelines.

b) require each party and candidate to make available on request without undue delay their campaign literature in alternate formats including large print, Braille, and accessible electronic format, or in the latter case, a link to an accessible version on an accessible internet site;

c) require that any television advertisements during an election campaign by a registered party include captioning for persons with hearing loss.

6. Accessible All-Candidates Debates

The spectre of inaccessible all-candidates debates keeps occurring, despite the adverse publicity that these events can generate. Traditionally, the election Act and Elections Ontario did not regulate all-candidates debates. However, there is no reason why this recurring problem cannot be addressed in this Act. It is in no one’s interest to hold an inaccessible all-candidate’s debate. These debates are intended to be open to all voters. As our population ages, the poor judgement, reflected in holding inaccessible all-candidates’ debates, will come home to roost with even more force.

We therefore recommend that:

#18. The bill be amended to:

a) prohibit the holding of an all-candidates debate or like forum in a venue that is inaccessible to persons with disabilities;

b) require that methods or procedures at all candidates' debates for the public to ask questions accommodate where possible, the full participation of members of the public with disabilities who want to ask questions.

c) provide that a very expeditious, informal complaints/enforcement mechanism be created for voters with disabilities, e.g. by lodging a complaint with Elections Ontario.

7. Communication Needs of Voters with Hearing Loss and other Disabilities

Persons who are deaf, deafened, and hard of hearing, as well as persons with certain other communication disabilities, face other barriers in the election process, beyond those discussed above. These must be effectively addressed. Because of the specialized needs of these communities, and the extremely short time lines for preparing this brief, the AODA alliance urges that the Legislature consult directly with those communities on the measures that should be added to Bill 231.

We therefore recommend that:

#19. Effective additional measures be added to the bill to address the communication needs of voters who are deaf, deafened, or hard of hearing, and for voters with any communication disabilities, after consulting directly with those communities on the amendments required.

8. Revising Elections Ontario’s Overall Mandate

In light of all of the preceding recommendations, it would be helpful for the mandate of Elections Ontario to be revised in the Election Act to make it clear that Elections Ontario has overall responsibility for ensuring fully accessible elections for voters and candidates with disabilities. We emphasize that this statement of purpose or objective alone is not enough. It must be accompanied by the concrete measures set out in this brief.

We therefore recommend that:

#20. the bill be amended to provide that Elections Ontario is responsible to ensure that each election and by-election is fully accessible to electors and candidates with disabilities, for the purpose of promoting their full participation in that election.

9. Barriers in Municipal Elections

a) The Need for Bill 231 to Address Municipal Elections Accessibility

The Ontario Government and Legislature have legislative authority over municipal elections. The same barriers that impede voters and candidates with disabilities in provincial elections also arise in municipal elections.

Making the quest for fully accessible municipal elections more challenging, there is no one single government agency charged with responsibility for ensuring the full accessibility of all municipal elections across Ontario. Each local municipal election is administered at the local level.

The commitments of each of the three parties in the 2007 election to an accessible elections action plan properly include accessibility of municipal elections, and not just provincial elections. Since the 2007 election, we have called on the Ontario Government to bring forward a single bill that addressed the accessibility of both provincial and municipal elections. We proposed this for two reasons. First, the very same barriers and solutions largely arise in both instances. Second, it is wasteful and unnecessarily time-consuming to have two separate pieces of legislation battle for time on the Legislature’s busy schedule to address the same problem. Despite this, Bill 231 only addresses provincial elections, and not municipal elections.

b) Bill 212 Didn’t Solve the Problem

Last fall, the Government passed very modest amendments to the municipal elections process on accessibility of municipal elections. These measures were very weak. They will not ensure fully accessible municipal elections.

On October 27, 2009, the McGuinty Government introduced Bill 212, the “Good Government” bill, into the Legislature for first reading. It passed third reading on December 3, 2009. This massive bill included amendments to a large number of different laws. Among these, the Minister of Municipal Affairs and Housing James Watson included amendments to the laws governing municipal elections, to try to remove some of the recurring barriers that impede voters and candidates with disabilities. Those amendments are available at: http://www.aodaalliance.org/strong-effective-aoda/12172009.asp

Shortly after Bill 212 was introduced into the Legislature, Minister Watson’s office told us about this development. We sent a delegation to meet with then-Municipal Affairs Minister Watson on November 2, 2009. We commended the Government for legislating in this area, but expressed serious concerns that the proposed amendments were very weak. The Minister invited us to send him a short list of proposed amendments within two weeks. The time lines were very short for this legislation. those proposals can be seen at: http://www.aodaalliance.org/strong-effective-aoda/12172009.asp

We later learned from the Minister’s office that all of our proposals were rejected. No one suggested that there was anything wrong with our proposals, on a policy basis. We were told that the Government would be open to reconsider this issue after the fall 2010 municipal elections.

We wrote the then-Municipal Affairs Minister on December 15, 2009, repeating our concerns with Bill 212’s municipal elections accessibility provisions, as follows:

“We commend your amendments for requiring a municipal clerk, overseeing a municipal election, to “have regard to the needs of electors and candidates with disabilities.” However, your amendments do not identify any of those needs. Your amendments do not address a wide range of barriers that can and do impede people with various disabilities from fully participating in municipal elections on a footing of equality. Your amendments leave it to each municipal clerk in each municipality around Ontario to re-invent the same wheel, trying to figure out what those needs are from scratch.

Moreover, your amendments fall far short of the requirements of the Human rights Code and the Charter of Rights. Those laws require the municipal clerk to actually accommodate the needs of voters and candidates with disabilities, not to merely “have regard” to them. When your Party was in opposition in 2001, it commendably criticized the previous Harris Government for using such weak wording as merely having regard to the needs of persons with disabilities in other contexts in the Ontarians with Disabilities Act 2001. Those criticisms were correct in 2001. They are still correct in 2009. They are right as well, now. The amendments we proposed would have strengthened this provision to make it more meaningful and effective.

Your amendments require a municipal clerk to submit a report to their municipal council about the identification, removal and prevention of barriers that affect electors and candidates with disabilities. This is helpful. However, it does not require the clerk to make this report public in an accessible format on the internet, or to submit that report to you, as Minister of Municipal Affairs. It does not require the report to be comprehensive. It does not require the clerk to take any steps to obtain the views of voters or candidates with disabilities on barriers they encountered.

As we discussed with you when we met on November 2, 2009, Elections Ontario submitted a report on disabilities barriers in the 2007 provincial election. That report made it look as if Elections Ontario had done a great job addressing such accessibility concerns, up to the point where it referred to actual feedback from voters with disabilities. Then the picture became quite bleak, with over 40% of those surveyed reporting problems. To see our review of that report, visit: http://www.aodaalliance.org/strong-effective-aoda/04272009.asp

We commend your amendments for providing that “In establishing the locations of voting places, the clerk shall ensure that each voting place is accessible to electors with disabilities.” However, your amendments do not provide any standards or criteria for accessibility of polling stations. It is unreasonable to assume that each and every municipal clerk around Ontario has expertise in this area. It is also wasteful to expect each municipal clerk to have to research this himself or herself, again, re-inventing the same wheel. We had proposed amendments to set helpful provincial standards for polling station accessibility. We regret that you rejected those amendments.

Finally, your amendments provide for no effective monitoring or enforcement of any of these new requirements. That makes them functionally voluntary measures. Your Party, when in opposition, roundly and wisely criticized the previous Harris Government when it put forward weak, unenforceable accessibility measures in the Ontarians with Disabilities Act 2001. In the 2003 election, Dalton McGuinty promised to enact a new disability law with effective enforcement.

Under Ontario’s municipal legislation’, even after it is amended by Bill 212, it will be up to hundreds of municipal clerks to each re-invent their own accessibility wheel for their own local elections. If Elections Ontario has not been able to get it right for provincial elections, the less-equipped and less-funded municipal clerks in each municipality can not be expected to do any better.”

Without effective, mandatory and enforceable legislation at the municipal level, we cannot expect the Ontario Government to use its existing powers of persuasion in an assertive way to achieve the goal of fully accessible municipal elections. In our December 15, 2009 letter to then-Municipal Affairs Minister Watson, we called on the Government to take concerted action on this agenda as follows:

“We were somewhat heartened to learn from an official in your office that you and your Government were prepared to reconsider this issue after the next municipal elections in 2010, and that these amendments were not intended to be your Government’s final word on municipal elections reform for addressing the needs of voters and candidates with disabilities. We welcome the chance to follow up on this early in the new year, even in advance of the next municipal election. We ask your Government to adopt the measures in our proposed amendments, sent to you on November 18, 2009, even if they are not enacted in legislation. For example, your Ministry could now:

Send each municipal clerk a list of recommended accessibility requirements for establishing barrier-free polling stations.

Send each municipal clerk a list of recurring barriers in municipal elections and recommended strategies for removing or preventing these barriers;

Encourage each municipal clerk to publicize proposed polling locations six months before the 2010 municipal elections, and ask for public feedback on their accessibility, with a view to modifying any location that presents an accessibility problem;

Ask each municipal clerk to post their report on the 2010 municipal election accessibility experience on their website, send you their report, and have you set up a centralized website with a link to all municipal reports on this topic for easy public and Government review;

None of these measures involves significant cost. Each would greatly assist working towards new, effective legislation in this area.”

Minister Watson responded by a letter to us dated January 5, 2010. He did not commit to any of our proposed steps. Apart from listing what Bill 212 included he merely stated:

“The Association of Municipal Managers, Clerks and Treasurers, in conjunction with the Accessibility Directorate of Ontario, is currently developing a series of publications to assist clerks, candidates and electors regarding accessible municipal elections….

We will be undertaking a review of the Municipal Elections Act after the 2010 municipal election. One component of that review will be an examination of any provincial-election reforms that may occur as a result of Bill 231.”

On February 8, 2010, we wrote his successor, Minister Bradley, asking him to take a fresh look at this issue. He has not responded.

c) Reforms Needed in Bill 231

It would be far more cost-effective to coordinate strategies for accessible elections at the provincial and municipal levels. As stated in our correspondence with the Municipal Affairs Minister, It would avoid re-inventing the wheel over and over, and is more likely to produce consistent, accessible results. For example, if new accessible voting technology is to be deployed, it is far more cost effective to acquire one set of technology that can be used at the provincial and municipal level, and cost-shared. We present proposals that build upon the recommendations for provincial elections, in this brief, and on the recommendations we submitted to the Municipal Affairs Minister last fall in connection with Bill 212.

We therefore recommend that:

#21. The bill should amend provincial legislation that governs municipal elections, to require comparable standards for accessibility of municipal elections akin to those to be imposed by these recommendations for provincial elections. Without attempting to be exhaustive, this should include:

a) requiring that a Municipal clerk who is responsible for conducting an election shall ensure that the election is fully accessible to electors and candidates with disabilities, for the purpose of promoting their full participation in that election, and without limiting the generality of the foregoing, implementing the following measures for the next municipal election after 2010;

b) requiring that in establishing the locations of voting places, the clerk shall ensure that each voting place is fully accessible to electors with disabilities, including complying with any regulations on polling station accessibility enacted for provincial elections (which shall apply with full force to polling stations in municipal elections as well) and including the criteria for polling station accessibility set out in the provincial Election Act, as proposed earlier in this brief;

c) requiring that the Clerk Make public no less than six months before the date fixed for the election the proposed locations for voting places, including posting this information on an internet site that is accessible to persons with disabilities, and shall invite public feedback on whether these proposed locations are sufficiently accessible;

d) requiring that the Clerk Establish and publicize an elections accessibility hotline during the period before and during voting day, for voters and candidates with disabilities to give feedback on proposed locations for voting places, and to give feedback and present inquiries on any accessibility problems;

e) requiring that the Clerk Review the proposed locations of voting places with the municipality’s Accessibility Advisory Committee, appointed under the Accessibility for Ontarians with Disabilities Act, and review these proposed locations in light of feedback received and make a final determination no later than 45 days before the election of the location of polling places, with reasons to be given if a polling station is not moved despite a complaint from a voter with a disability or from the municipality’s Accessibility Advisory Committee.

f) requiring that the Clerk Ensure that all ballots are printed in sufficiently large font

g) requiring that the Clerk Ensure that accessible voting technology (such as telephone voting) will be available to enable voters who cannot read printed ballots, or who cannot independently mark a printed ballot, to independently and privately mark their ballot and verify their selection, including at one advanced polling location on all advance polling dates, and on election day, along the same lines as are proposed in this brief for provincial elections.

h) requiring that the Clerk Ensure that the Municipal Clerk’s office is accessible to persons with disabilities, and provide TTY services for callers with hearing loss.

i) Requiring that within 90 days after voting day in a regular election, the clerk submit a report to council and to the Minister of Municipal Affairs and Housing, and post on the municipality’s internet site in a format that is accessible for persons with disabilities, about the identification, removal and prevention of barriers that affect electors and candidates with disabilities, which shall include:

i) The steps that the Clerk took to ensure that the election was accessible for electors and candidates with disabilities;

ii) A survey of candidates and electors with disabilities on any barriers or difficulties they experienced when taking part in the election;

iii) A summary of any complaints or feedback received from electors or candidates with disabilities during the election regarding the accessibility of the election, and steps taken to address these, and

iv) Recommendations of any steps that need to be taken to ensure that the next election will be fully accessible to electors and candidates with disabilities;

j) Requiring that the Minister of Municipal Affairs make public in an accessible form on an internet site the reports under these amendments that he or she receives, and shall submit a report to the Legislature no more than six months after the election on barriers which electors or candidates with disabilities encountered during the election, and recommendations on any steps that will ensure that the next election will be fully accessible to persons with disabilities.

10. Making the Ontario Government More Responsive and Accountable for Elections Accessibility.

It is very commendable that in the 2007 election, Premier McGuinty promised Ontarians with disabilities an accessible election action plan. However, it has been very frustrating and troubling that since he made that promise, we have had an very difficult time getting to speak directly to someone in charge of keeping that promise.

At present, there is no single minister in charge of ensuring that elections within Ontario’s jurisdiction are fully accessible to voters and candidates with disabilities. Instead, this issue has been ineffectively dealt with in isolated silos within the Ontario Government, with no coordination or oversight. This resulted in the inclusion in Bill 231 and 212 of very inadequate provisions on elections accessibility.

We have tried over and over to find the right people to deal with to get the Ontario Government to keep its 2007 election promise of an accessible election action plan. Here is what we encountered:

a) from shortly after the 2007 election until early 2010, we have asked the Premier’s office over and over to identify or designate a cabinet member with lead responsibility for this issue. Eighteen months ago, we presented a proposal to senior Government officials on how to address this issue i.e. what aims to pursue and how to consult on it. None of those suggestions were acted upon. Until January, 2010, no single cabinet minister was designated.

b) On November 24, 2008, we met with public officials from the Accessibility Directorate of Ontario, Cabinet Office’s Democratic Institutions Policy branch, the Ministry of Municipal Affairs and Housing, the Ministry of Education, and Elections Ontario, who were part of an inter-ministerial committee looking at the issue of accessible elections. It was then confirmed that this working-group was at an extremely preliminary stage of information gathering, over one year after the 2007 election. It had no real working plan, and had no one in charge giving them direction. We were later advised that their work was on hold in 2009 pending the work of the Legislature’s Select Committee on Elections. We were never again contacted to assist that working group, if indeed it ever met again after the Select Committee’s June 2009 report.

c) We were advised to bring our suggestions to the Select Committee on Elections in spring 2009. We appeared before that Select Committee. Its June 2009 report did not adopt the bulk of our proposals. We are unaware of it holding any systematic open consultations with the broad disability community before deciding what to recommend regarding elections accessibility.

d) When we met with the chair of the Select Committee on Elections in spring 2009, Greg Sorbara, he made it clear that his responsibility for this issue terminated when the Select Committee rendered its report. After the Select Committee rendered its report, we wrote Community and Social Services Minister Meilleur on July 23, 2009, asking with whom we should deal on the Government’s response to that report. She wrote us on August 13, 2009 directing us to speak with Mr. Sorbara, the very person who had said he would have no responsibility for this issue.

e) We wrote Premier McGuinty on December 18, 2009 to find out with whom we should speak about steps needed to implement his Government’s 2007 election pledge of an accessible election action plan. On January 18, 2010, Premier McGuinty wrote us, directing us to speak with Community and Social Services Minister Meilleur, the very Minister who months earlier had directed us to Mr. Sorbara.

f) As described earlier in this brief, in October, 2009, we learned from the Government that Municipal Affairs Minister James Watson had included provisions dealing with municipal elections accessibility in the omnibus Bill 212, the Good Government bill, addressed earlier in this brief. We met him in November 2009 to urge that those amendments be strengthened. He asked us for a short list of proposals. We submitted them to him. He rejected them all without giving any substantive reasons that suggested there was anything wrong with what we proposed.

g) In December 2009, we learned via the internet, and not from the Government, that the Government had introduced Bill 231 into the Legislature for first reading. It purports to respond to the Government’s promise to us of an accessible election action plan. Yet the Government did not consult us on that bill after the Select Committee rendered its report in June 2009, despite our repeated efforts to have input on this issue. Indeed, the Government did not even notify us in advance or afterwards that the bill was introduced.

It was our coalition that asked the Government in the 2007 election to promise action on elections accessibility. It was our coalition to whom the Government wrote on September 14, 2007, setting out its 2007 election promise on this issue. It is our coalition that has been trying in as many ways as volunteers can to have some meaningful input. We have been excluded or disregarded at virtually every step in the process. Even when we get a chance to present views, they are largely if not totally rejected. Ontarians with disabilities deserve better.

We therefore recommend that:

#22. The bill be amended to designate a single cabinet minister within the Government ( who need not be a new minister or a stand-alone minister dealing solely with this issue) to be responsible for accessibility of provincial and municipal elections in Ontario.

There is need for an independent review of action taken between now and the end of the 2011 election to see what further steps might be needed to ensure fully accessible provincial and municipal elections. The Accessibility for Ontarians with Disabilities Act includes a very good provision requiring an Independent Review of the effectiveness of that legislation. It provides:

41. (1) Within four years after this section comes into force, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a comprehensive review of the effectiveness of this Act and the regulations and report on his or her findings to the Minister. 2005, c. 11, s. 41 (1).

Consultation

(2) A person undertaking a review under this section shall consult with the public and, in particular, with persons with disabilities. 2005, c. 11, s. 41 (2).

Contents of report

(3) Without limiting the generality of subsection (1), a report may include recommendations for improving the effectiveness of this Act and the regulations. 2005, c. 11, s. 41 (3). Tabling of report

(4) The Minister shall submit the report to the Lieutenant Governor in Council and shall cause the report to be laid before the Assembly if it is in session or, if not, at the next session. 2005, c. 11, s. 41 (4).

Further review

(5) Within three years after the laying of a report under subsection (4) and every three years thereafter, the Lieutenant Governor in Council shall, after consultation with the Minister, appoint a person who shall undertake a further comprehensive review of the effectiveness of this Act and the regulations. 2005, c. 11, s. 41 (5).

Same

(6) Subsections (2), (3) and (4) apply with necessary modifications to a review under subsection (5). 2005, c. 11, s. 41 (6).

There is a similar provision in Bill 107, the law passed by the McGuinty Government that privatized enforcement of human rights in Ontario. It provides:

57. (1) Three years after the effective date, the Minister shall appoint a person who shall undertake a review of the implementation and effectiveness of the changes resulting from the enactment of that Act.

Public consultations

(1.1) In conducting a review under this section, the person appointed under subsection (1) shall hold public consultations.

Report to Minister

(2) The person appointed under subsection (1) shall prepare a report on his or her findings and submit the report to the Minister within one year of his or her appointment.

We therefore recommend that:

#23. The bill be amended to require that four months after the 2011 Ontario election, the Government shall appoint an Independent Review of the effectiveness of Ontario legislation, and action taken under it, addressed to ensure that provincial and municipal elections in Ontario are fully accessible to voters and candidates with disabilities. That Independent Review should be required to consult with the public and in particular with persons with disabilities, and should be required to make his or her report public within 9 months of his or her appointment. A comparable Independent Review should be required after the next Ontario general election.

APPENDIX 1 - RECOMMENDATIONS

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. 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. Section 23 of the bill should be amended to:

a) require that by a designated date, no later than the scheduled 2015 Ontario election, Elections Ontario will have available to voters with disabilities across Ontario accessible voting machines which will enable voters with print disabilities, (such as vision loss or motor limitations) the ability to independently vote in privacy, and to verify their choice;

b) setting the functionality that accessible voting machines must provide, without otherwise limiting the technology that can be used e.g. without prohibiting the technology from being connected to an electronic network.

c) require Elections Ontario to make public by a designated date its plans for this technology, after consulting on it with persons with disabilities;

d) require Elections Ontario to make public via accessible formats, internet sites and media, the availability and location of accessible voting machines;

e) require Elections Ontario to consult with persons with disabilities after the deployment of this technology, and to make public the feedback received and any changes to be made as a result of that feedback.

#4. Sections 8 and 22 of the bill be amended to require that Elections Ontario widely publicize the hours that polls are open, not limited to the internet, including via accessible formats and media that are likely to reach voters with disabilities, with a higher duty to publicize if hours will vary from poll to poll, or on different days during an election.

#5. Section 25 of the bill, governing special ballots, be amended to:

a) broaden the criteria for home visits to remove barriers to their use by voters with disabilities where needed, and to remove the sweeping discretion given to Elections Ontario over who will receive a home visit;

b) provide for an expeditious right of appeal in any case where Elections Ontario refuses to provide a home visit for a special ballot;

c) require that special ballot kits and voting procedures enable voters with disabilities to independently mark their ballot in privacy and verify their choice.

#6. Section 32 of the bill be amended to:

a) require Elections Ontario within a specified period to undertake the research referred to in it, not merely permit Elections Ontario to do that research regarding voting accessibility, and requiring that the results of that research be made public;

b) require that research to include investigating options for ensuring elections accessibility attempted in other jurisdictions such as the U.S.

c) require the Government to provide Elections Ontario with funds to enable that research to be undertaken.

#7. The bill be amended to institute detailed requirements to ensure full accessibility of all polling stations in any Ontario election or by-election. These amendments should establish bedrock accessibility requirements for polling stations, such as requiring that Elections Ontario ensure that in establishing the locations of voting places, each voting place is fully accessible to electors with disabilities, including, without limiting the generality of the foregoing that:

a) there is level access to a plainly visible public entrance to the building in which the voting place is to be located, without a voter needing to ascend or descend any stairs, and that there is unobstructed level access within no more than 25 meters from the road to that entrance to that building;

b) There is level unobstructed access from the accessible entrance to the building to the voting place within the building, without a voter needing to ascend or descend any stairs;

c) Any doorway from the outside of the building, and inside the building on the route to the voting place within the building is sufficiently wide to enable a person using a mobility aid to pass through;

d) a building where a voting place is to be situated is, to the extent feasible, located within no more than 100 meters of a regular route stop for an accessible public transit vehicle on a conventional bus route, and within 100 meters of designated accessible parking for persons with disabilities, whether permanently designated, or designated for that purpose during Election Day (with proper signage showing that designation);

e) An elector need not travel more than 50 meters after entering the building to reach the voting place within the building;

f) Any walking route to access the voting place will be unobstructed, including being free of any signs, snow, ice or other obstruction.

g) The voting place will have sufficient lighting to accommodate the needs of persons with low vision.

h) To the extent feasible, the polling place with be operated to minimize exposure to artificial fragrances.

#8. The Bill be amended to:

a) require Cabinet to enact regulations by March, 2011, further specifying accessibility requirements for polling stations, after proper consultation with the public, including Ontarians with disabilities and

b) require Cabinet to review those regulations, after further input from the public including Ontarians with disabilities, after the 2011 Ontario General election.

#9. The bill be amended to authorize Elections Ontario officials including a returning officer to designate that a proportion of pre-existing parking spots on public roads or publicly-accessible parking spots, near a polling station, be designated disability parking spots for purposes of the election or advanced poll.

#10. The bill be amended to prohibit anyone from doing anything that directly or indirectly leads to a polling station being placed in or moved to an inaccessible location.

#11. The bill be amended to incorporate detailed mandatory procedures to ensure in advance that polling stations will be fully accessible in accordance with the Act, including:

a) requiring Elections Ontario to make very public no less than six months before the date fixed for the election the proposed locations for voting places, including specifics on steps taken to ensure its accessibility, including posting this information on an internet site that is accessible to persons with disabilities, and shall invite public feedback on whether these proposed locations are sufficiently accessible;

b) Establish and widely publicize an elections accessibility hotline during the six month period before and during voting day, for voters and candidates with disabilities to give feedback on proposed locations for voting places, and to give feedback and present inquiries on any accessibility problems;

c) Review the proposed locations of voting places in light of feedback received and make a final determination no later than 60 days before the election of the location of polling places. Where Elections Ontario decides not to move a proposed polling station despite objections to it having been received on grounds of accessibility concerns, Elections Ontario should be required to make public its reasons for refusing to alter the polling station’s location;

d) provide for an avenue of immediate appeal for any decision by Elections Ontario on the location of a polling station, to be heard on an expedited basis, that may be brought by a person who lodged a timely complaint with Elections Ontario about a proposed location, if Elections Ontario did not move that proposed polling station to a fully accessible location. The body to which the appeal will be brought should have the authority to order the relocation of the proposed polling station;

e) ensure that any returning officer’s office in any riding is accessible to persons with disabilities, and provides TTY services for callers with hearing loss.

f) provide for remedies including compensation for any voter who is denied an opportunity for fully accessible voting by Elections Ontario’s conduct of the election, including, without limiting the generality of the foregoing, the failure to provide a fully-accessible polling station.

#12. The bill be amended to require that all ballots use a large print clear font to enable as many voters with low vision as possible to mark them independently.

#13. The bill be amended to require Elections Ontario to make public by January 1, 2011, and thereafter, by January 1 of each year in which a general election is scheduled by fixt term to be held, including on an accessible website, its proposed plan for ensuring the full accessibility of the upcoming election, including, without limiting the generality of the foregoing, the steps it plans to take to:

a) ensure the accessibility of all polling locations;

b) ensure the accessibility of ballot and of voting procedures, including the right to independently mark one’s ballot and to verify the voter’s choice;

c) the accessibility of all returning offices, and

d) the accessibility of other services to be offered by Elections Ontario during the campaign;

#14. The Bill be amended to require Elections Ontario to invite input from the public, including from persons with disabilities, on its proposed accessibility plan, and requiring Elections Ontario, no later than June 1 of that year, to make public as summary of feedback received, and the additional steps, if any, it plans to add to its proposed accessibility plan for that election.

#15. The bill be amended to require that

a) reports of each returning officer on accessibility steps, now provided for in s. 55.1 of the Election Act, must be posted on an accessible website;

b) Within four months after voting day in a regular election, Elections Ontario shall also make public a comprehensive report, including posting it on an internet site in a format that is accessible for persons with disabilities, about the identification, removal and prevention of barriers that affect electors and candidates with disabilities, which shall include:

i) The steps that Elections Ontario took to ensure that the election was accessible for electors and candidates with disabilities;

ii) the results of an independent survey of candidates and electors with disabilities on any barriers or difficulties they experienced when taking part in the election;

iii) A summary of any complaints or feedback received from electors or candidates with disabilities during the election regarding the accessibility of the election, and steps taken to address these, and

iv) Recommendations of any steps that need to be taken to ensure that the next election will be fully accessible to electors and candidates with disabilities.

#16. The bill be amended to require that candidates select an accessible location for his or her campaign office.

#17. The bill be amended to:

a) Require each party’s and candidate’s campaign website to be accessible to voters with disabilities in accordance with the W3C Consortium’s WCAG 2.0 Level AA Guidelines.

b) require each party and candidate to make available on request without undue delay their campaign literature in alternate formats including large print, Braille, and accessible electronic format, or in the latter case, a link to an accessible version on an accessible internet site;

c) require that any television advertisements during an election campaign by a registered party include captioning for persons with hearing loss.

#18. The bill be amended to:

a) prohibit the holding of an all-candidates debate or like forum in a venue that is inaccessible to persons with disabilities;

b) require that methods or procedures at all candidates' debates for the public to ask questions accommodate where possible, the full participation of members of the public with disabilities who want to ask questions.

c) provide that a very expeditious, informal complaints/enforcement mechanism be created for voters with disabilities, e.g. by lodging a complaint with Elections Ontario.

#19. Effective additional measures be added to the bill to address the communication needs of voters who are deaf, deafened, or hard of hearing, and for voters with any communication disabilities, after consulting directly with those communities on the amendments required.

#20. the bill be amended to provide that Elections Ontario is responsible to ensure that each election and by-election is fully accessible to electors and candidates with disabilities, for the purpose of promoting their full participation in that election.

#21. The bill should amend provincial legislation that governs municipal elections, to require comparable standards for accessibility of municipal elections akin to those to be imposed by these recommendations for provincial elections. Without attempting to be exhaustive, this should include:

a) requiring that a Municipal clerk who is responsible for conducting an election shall ensure that the election is fully accessible to electors and candidates with disabilities, for the purpose of promoting their full participation in that election, and without limiting the generality of the foregoing, implementing the following measures for the next municipal election after 2010;

b) requiring that in establishing the locations of voting places, the clerk shall ensure that each voting place is fully accessible to electors with disabilities, including complying with any regulations on polling station accessibility enacted for provincial elections (which shall apply with full force to polling stations in municipal elections as well) and including the criteria for polling station accessibility set out in the provincial Election Act, as proposed earlier in this brief;

c) requiring that the Clerk Make public no less than six months before the date fixed for the election the proposed locations for voting places, including posting this information on an internet site that is accessible to persons with disabilities, and shall invite public feedback on whether these proposed locations are sufficiently accessible;

d) requiring that the Clerk Establish and publicize an elections accessibility hotline during the period before and during voting day, for voters and candidates with disabilities to give feedback on proposed locations for voting places, and to give feedback and present inquiries on any accessibility problems;

e) requiring that the Clerk Review the proposed locations of voting places with the municipality’s Accessibility Advisory Committee, appointed under the Accessibility for Ontarians with Disabilities Act, and review these proposed locations in light of feedback received and make a final determination no later than 45 days before the election of the location of polling places, with reasons to be given if a polling station is not moved despite a complaint from a voter with a disability or from the municipality’s Accessibility Advisory Committee.

f) requiring that the Clerk Ensure that all ballots are printed in sufficiently large font

g) requiring that the Clerk Ensure that accessible voting technology (such as telephone voting) will be available to enable voters who cannot read printed ballots, or who cannot independently mark a printed ballot, to independently and privately mark their ballot and verify their selection, including at one advanced polling location on all advance polling dates, and on election day, along the same lines as are proposed in this brief for provincial elections.

h) requiring that the Clerk Ensure that the Municipal Clerk’s office is accessible to persons with disabilities, and provide TTY services for callers with hearing loss.

i) Requiring that within 90 days after voting day in a regular election, the clerk submit a report to council and to the Minister of Municipal Affairs and Housing, and post on the municipality’s internet site in a format that is accessible for persons with disabilities, about the identification, removal and prevention of barriers that affect electors and candidates with disabilities, which shall include:

i) The steps that the Clerk took to ensure that the election was accessible for electors and candidates with disabilities;

ii) A survey of candidates and electors with disabilities on any barriers or difficulties they experienced when taking part in the election;

iii) A summary of any complaints or feedback received from electors or candidates with disabilities during the election regarding the accessibility of the election, and steps taken to address these, and

iv) Recommendations of any steps that need to be taken to ensure that the next election will be fully accessible to electors and candidates with disabilities;

j) Requiring that the Minister of Municipal Affairs make public in an accessible form on an internet site the reports under these amendments that he or she receives, and shall submit a report to the Legislature no more than six months after the election on barriers which electors or candidates with disabilities encountered during the election, and recommendations on any steps that will ensure that the next election will be fully accessible to persons with disabilities.

#22. The bill be amended to designate a single cabinet minister within the Government ( who need not be a new minister or a stand-alone minister dealing solely with this issue) to be responsible for accessibility of provincial and municipal elections in Ontario.

#23. The bill be amended to require that four months after the 2011 Ontario election, the Government shall appoint an Independent Review of the effectiveness of Ontario legislation, and action taken under it, addressed to ensure that provincial and municipal elections in Ontario are fully accessible to voters and candidates with disabilities. That Independent Review should be required to consult with the public and in particular with persons with disabilities, and should be required to make his or her report public within 9 months of his or her appointment. A comparable Independent Review should be required after the next Ontario general election.