Excerpts of the Select Committee on Election’s June 2009 Report on Modernizing Ontario Elections Legislation

EXCERPTS FROM THE JUNE 2009 REPORT OF THE SELECT COMMITTEE ON ELECTIONS

In June 2009, the Ontario Legislature’s Select Committee on Elections made public its report entitled: “MODERNIZING ONTARIO’S ELECTORAL LEGISLATION”. The report said the following about making elections accessible to persons with disabilities:

1. A delegation from the Accessibility for Ontarians with Disabilities Act Alliance, led by Mr. David Lepofsky, Ms. Catherine Tardik, and Mr. John Rae, brought advice about making Ontario’s electoral process fully accessible to persons with disabilities and responded to questions from Committee members.

2. A delegation from the Accessibility for Ontarians with Disabilities Act Alliance, led by Mr. David Lepofsky, Ms. Catherine Tardik, and Mr. John Rae, brought advice about making Ontario’s electoral process fully accessible to persons with disabilities and responded to questions from Committee members.

3. Mobile Polls

Section 14 of the Election Act provides that a polling place will be provided in an institution of 20 or more beds in which chronically ill or infirm persons reside, or in a retirement home of 50 or more beds. Subsection 14(2) also permits the deputy returning officer and poll clerk “to attend upon the electors at their bedsides or otherwise for the purpose of receiving their ballots.” Following this 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.” (14(3))

Proposal

The Committee considered the proposal that Ontario’s electoral legislation:

11. (a) provide the Chief Electoral Officer and returning officer with the ability to establish mobile polls, as needed, and determine the voting hours of such polls; and

(b) model this section of the legislation on provisions for mobile polls in the Canada Elections Act.

Under subsection 538(5) of the Canada Elections Act, a returning officer may establish a polling division that consists of two or more institutions “where seniors or persons with a physical disability reside.” When such a division has been constituted, the returning officer may, under subsection 125(1), establish “a mobile polling station to be located in each of those institutions successively.” The returning officer must set the hours that the mobile polling station will be located at each of the institutions and provide candidates with notice of that itinerary.

Mobile polls are generally regarded as a more efficient use of resources than staffing a poll at each institution for regular polling hours. In the Northwest Territories, a mobile poll may visit an elector who is housebound. The Canada Elections Act includes a provision that permits a housebound voter who is unable to read, or who is unable to complete a special ballot, or who, on account of a physical disability, is unable to visit the returning office, to apply to have an election official visit the elector’s home and, in the presence of a witness, assist the elector in voting.

The Committee was generally receptive to the idea of a mechanism that would bring a ballot to the housebound elector, whether or not this is regarded as a “mobile poll”. Reservations were expressed with respect to the mobile poll that successively attends two or more institutions. One concern was the absence of a fallback provision to address the elector who is resident in the institution and wishes to vote but finds that he or she has missed the mobile poll. A more fundamental objection was that polls in institutions should have the same hours as regular polls, in keeping with the principle of providing equal access to all electors.

Identification Documents

In 2007, the Election Act was amended to require electors to produce proof of identity in order to receive a ballot at the polling place, and proof of identity and proof of place of residence when seeking to register and receive a ballot at the polling place. The Act also provides that the Chief Electoral Officer “shall . . . determine what document or class of documents constitutes” proof of identity and proof of place of residence.

Both Mr. Hollins and Mr. Essensa have indicated that Elections Ontario wishes to include the photo Ontario Health Card as a document that provides proof of identity and residence. Concern has been raised that the Personal Health Information Protection Act, 2004 (PHIPA) limits the ability of election officials to ask electors to produce the health card for identification purposes.

A close reading of subsection 34(4) of PHIPA indicates that it proscribes “requiring” the presentation of the health card. Federal practice in Ontario during the general election of 2008 suggests that identifying and promoting the use of the health card as an identification document is consistent with PHIPA. On this interpretation, Ontario election officials are permitted to ask electors to show provincially-issued identification cards, including health cards, so long as there is no requirement to produce the health card. This view was shared by Ontario’s Privacy Commissioner, Dr. Anne Cavoukian, who wrote to the Committee as follows:

The current practice of allowing the use of Ontario health cards as an optional proof of identification in Ontario elections is consistent with the provisions in PHIPA. I am not aware of any reason why these provisions, or the current practice, should be changed.

Proposal

The Committee considered the proposal that Ontario’s electoral legislation

12. Permit individuals to use their health card as identification for the purposes of voting.

The Committee supports Ontario electors continuing to be able to use their photo health card in order to establish their identity and/or place of residence.

Vouching

Section 51 of the Election Act permits an elector whose name is on the polling list and who is able to provide proof of his or her identity to vouch for an elector whose name was omitted from the polling list. This provision may be applied only in a rural polling division (under s. 12(1) each returning officer is required to divide the electoral district into urban and rural polling divisions as directed by the Chief Electoral Officer). Under s. 51(2), an elector may vouch for more than one elector.

The procedure provided for in section 51 is an example of vouching for the purposes of registering an elector. Vouching for this purpose is also permitted under the Canada Elections Act, and the election Acts in Saskatchewan and New Brunswick. Canada and Saskatchewan also permit an elector whose name is on the polling list and who is able to provide proof of his or her identity to vouch for an elector whose name is on the list but is unable to provide satisfactory proof of identity. These are examples of vouching for the purposes of receiving a ballot.

In his report on the 2007 election, Chief Electoral Officer John Hollins suggested that section 51 is an anachronism that retaining this process “compromises the integrity of the voting and does not treat all electors equally. This situation merits legislative change.” During the 2007 election, section 51 was rendered inoperative because of the decision that no polling divisions would be designated as rural polling divisions.

Many of Ontario’s returning officers have experience working in federal elections where, as noted, vouching is possible in all polling divisions. Many of these election officials have found vouching provisions to be very helpful, an observation they shared with Elections Ontario and with the Committee. In his appearance before the Committee, Mr. Hollins recommended that an elector with proper proof of identity be allowed to vouch for one other person, both for the purposes of receiving a ballot and for the purposes of registration.

Mr. Essensa’s submission to the Committee suggests that section 51 (vouching for the purposes of registration) be amended to apply to all electoral districts, and that vouching for the purposes of receiving a ballot also be permitted.

Proposal

The Committee considered the proposal that Ontario’s electoral legislation

13. (a) permit an elector whose name is on the polling list and who is able to produce acceptable proof of identity to vouch for the identity of an elector whose name is on the polling list so that he or she may receive a ballot, or to confirm for the purpose of registration the identity of an eligible elector whose name does not appear on the polling list;

(b) require the elector who was vouched for (the vouchee) to sign a declaration;

(d) establish that an elector may vouch for no more than two electors.

Both opposition party Members reported that their caucuses were divided on this issue. One Member suggested that vouching works better in a rural polling division where the population changes less frequently. Another Member noted a strong desire that electors produce identification, offset by the recognition that vouching may provide a means of enfranchising homeless persons. In this respect, it was suggested, the proposed limit (that one elector may only vouch for two electors) could prove to be problematic.

Clarifying Student Residency

In his post-election report, then Chief Electoral Officer John Hollins recommended that Ontario’s legislation follow the lead of the Canada Elections Act in permitting university and college students to designate their residence for the purposes of voting. Currently, under subsection 1.1(2), Ontario’s Act states that “the place where a person’s family resides is also his or her residence, unless he or she moves elsewhere with the intention of changing his or her permanent lodging place.” The provision in the federal Act to which Mr. Hollins referred states that “the place of ordinary residence of a person is the place that has always been, or that has been adopted as, his or her dwelling place.” (s. 8(1))

Proposal

The Committee considered the proposal that Ontario’s electoral legislation

14. Make it easier for students to choose where they live for the purposes of voting.

Committee members agreed with the principle of permitting postsecondary students studying away from home to identify the electoral district in which they are resident for the purpose of voting.

Testing Voting and Vote-Counting Equipment and Alternative Voting Methods

Section 4.1 of the Election Act permits the Chief Electoral Officer during a by-election to employ voting equipment, vote-counting equipment or alternative voting methods different than those required by the Act. This “piloting provision” was employed, for example, in advance polls for the March 2009 by-election in the electoral district of Haliburton–Kawartha Lakes–Brock to test ballot-marking equipment that permits electronic tabulation of ballots and incorporates an accessibility feature that allows persons who might not otherwise be able to mark their own ballot to do so.

Proposal

The Committee considered the proposal that Ontario’s electoral legislation

15. Permit the Chief Electoral Officer, in consultation with the advisory committee (appointed under s. 4.3 of the Election Act and) comprised of members appointed by the registered political parties, to test voting and vote-counting equipment and alternative voting methods in both general elections and by-elections.

Discussion of this issue revealed concerns about extending the Chief Electoral Officer’s ability to pilot new methods and technologies to include general elections. One objection was that there should be uniformity across the province in how electors vote, which would be compromised if the testing in a general election were to take place in some districts and not others. Another concern was the weakness of the proposed direction to the Chief Electoral Officer (i.e., “in consultation with the advisory committee”). By contrast, for example, s. 18.1 of the Canada Elections Act permits the Chief Electoral Officer to “test an electronic voting process for future use in a general election or a by-election,” but also prescribes that “such a process may not be used for an official vote without the prior approval of the committees of the Senate and of the House of Commons that normally consider electoral matters.”

Commissions and/or Committees

The Chief Electoral Officer noted his authority to make recommendations he considers advisable to the Acts that he administers in his annual report to the Legislative Assembly. He has proposed that the Chief Electoral Officer also be given the statutory authority to study and report on all matters related to the field of election administration, election finance and voter registration. Mr. Essensa believes that his office should also have the authority to study and report on any policy issues that affect the general administration of federal, provincial and municipal elections in Ontario, and the power to hold meetings and symposia on education-related topics. Finally, Mr. Essensa has recommended that the Chief Electoral Officer be granted the authority to assemble a body of experts to study and consult on contribution, expense, spending and advertising rules.

Proposal

The Committee considered the proposal that Ontario’s electoral legislation

16. Permit the Chief Electoral Officer to establish Commissions and/or Committees from time to time to examine the ongoing modernization of the voting process and the rationalization of election services.

A strong objection to this proposal was raised on the basis that innovation or change, if it is needed, should be considered by a Committee of the Legislative Assembly.

V. IMPROVING ACCESS FOR PERSONS WITH DISABILITIES

Representatives of persons with disabilities met with the Committee to discuss efforts to make Ontario’s elections fully accessible. The group, members of the Accessibility for Ontarians with Disabilities Act Alliance (AODA Alliance), reminded the Committee that during the 2007 election campaign, each political party committed to achieving an accessible election action plan. They also shared with the Committee their views on how such a plan might be put into place and realized. In addition, the Committee was informed of service delivery gaps in the provision of accessible voting opportunities for persons with disabilities during the 2007 election.

Put most simply, the vision of the AODA Alliance is a system in which all persons with a disability may not only vote, but be able to verify independently how they have voted. It is this outcome that matters, they emphasized, not the technology that may be used to achieve it.

A theme stressed by the AODA Alliance group was the importance of having election officials consult with members of their community. One service delivery gap explained to the Committee was that many of the polling locations selected by returning officers for the 2007 general election and identified as accessible turned out, on polling day, to be less than fully so. According to a former Elections Ontario employee, returning officers lacked training in how to assess the accessibility features of locations, and lacked knowledge of best practices from other jurisdictions. The AODA Alliance suggested that potential voting locations be identified at a much earlier date (particularly for elections held under s. 9(2) of the Act), and that the community of persons with disabilities be consulted to assess the accessibility of locations prior to their confirmation as polling places.

The AODA Alliance suggested that measures such as pre-selecting voting locations sufficiently in advance of elections and permitting persons with a disability to assess them should be put into legislation. More generally, the group asked that legislation include mandatory steps toward achieving accessibility and monitoring measures to ensure compliance takes place:

We’re confident that their [Election Ontario’s] intentions are good, but . . . . we have learned that leaving it to voluntary action, not legislative guarantees, will not provide accessibility.

In summing up, the AODA Alliance asked the Committee to accept the 2011 general election as the deadline for putting an end to inaccessible ballots, inaccessible polling stations, and inaccessible all-candidates’ debates.

Use of Technology

Subsection 55(1) of the Election Act permits an elector who is unable to read, or with a disability that prevents him or her from voting as otherwise prescribed in the Act, to apply for assistance in marking his or her ballot. Under this provision, the deputy returning officer may mark the elector’s ballot as he or she directs, in the presence of the poll clerk, and place it in the ballot box. Subsections 55(2) to 55(5) detail a process, similar to that in subsection 55(1), whereby a friend of the elector may accompany the elector to the voting screen and mark the ballot as the elector directs. Both Mr. Hollins and Mr. Essensa have noted that these arrangements compromise the secrecy of the elector’s vote.

Proposal

The Committee considered the proposal that Ontario’s electoral legislation

17. Permit the Chief Electoral Officer to use or adapt new technologies to assist persons with disabilities to vote.

During the Committee’s deliberations, one Member expressed support for this proposal, but also for retaining the option available under subsections 55(2) to 55(5) – “friend of the elector.” The Committee decided to invite the Chief Electoral Officer to share Elections Ontario’s experience piloting new technology in the March 2009 by-election in Haliburton–Kawartha Lakes–Brock. The Committee’s discussion with the Chief Electoral Officer highlighted several issues:

the small number of electors who used the accessibility features in the electronic ballot tabulation technology being tested;
the cost of the technology;
the need to train election officials in administering the technology;
the likelihood of improvements in technology and any impact of this consideration on decisions to buy or lease such technology; and
the possibility of sharing technology (and costs) with other levels of government.

Mobile Polls / Special Ballots

The government’s proposals to adopt provisions permitting mobile polls and special voting rules, patterned in each case on provisions in the Canada Elections Act, if adopted, would offer alternative voting methods for persons with a disability that currently are not available. Committee members supported including a provision such as s. 243.1 of the federal Act, which allows a housebound elector with a physical disability to apply to have an election official visit the elector’s home and assist the elector in voting (noted above).

Transfer Certificates

Under subsection 24(1.1), electors who could vote more conveniently in another polling division (than the one in which they reside) because their mobility is impaired by a disability or by some other cause may apply, up to and including the day immediately preceding polling day, for a transfer. This does not accommodate persons with disabilities who discover on polling day that the polling location to which they have been assigned is not sufficiently accessible.

Proposal

The Committee considered the proposal that Ontario’s electoral legislation

18. Permit electors with a disability to apply, up to and including polling day, to transfer to a more accessible polling location.

The Committee supported extending the transfer application period to include polling day.

5. Persons with Disabilities

The dialogue between members of the AODA Alliance and the Committee, discussed above, revealed a need for more consultation and cooperation between Elections Ontario and members of the community of persons with disabilities.

Recommendation

The Committee considered the recommendation that

29. The Chief Electoral Officer continue to work closely with the community of persons with disabilities on developing additional services, such as

(a) information, e-mail access and special ballot registration forms available on the Elections Ontario website;

(b) a sign-language DVD with open- and closed- captioning for people who are deaf, deafened, or hard of hearing; and

6. PROPOSALS FOR ELECTORAL LEGISLATION…

…

a) IV. IMPROVING THE VOTING PROCESS

Advance Polls (p. 16–17)

8. Provide the Chief Electoral Officer with the ability, in consultation with the returning officer, to determine the number of days, polling hours, and polling locations for advance polling that will meet the needs of electors in a district.

Proxy Voting and Special Ballots (pp. 17–18)

9. (a) eliminate provisions that permit voting by proxy; and

(b) include special voting rules (i.e., voting by special ballot), modelled on provisions in the Canada Elections Act.

Service Delivery Enhancements (pp. 18–20)

10. (a) allow the Chief Electoral Officer, in consultation with representatives of Ontario’s political parties and with returning officers, to incorporate new tools and methodologies in the polling process;

(b) eliminate provisions that prevent the application of innovations that would deliver better service to electors while preserving the integrity of the system; and

Mobile Polls (pp. 20–21)

11. (a) provide the Chief Electoral Officer and returning officer with the ability to establish mobile polls, as needed, and determine the voting hours of such polls; and

(b) model this section of the legislation on provisions for mobile polls in the Canada Elections Act.

b) Testing Voting and Vote-Counting Equipment and Alternative Voting Methods (pp. 24–25)

Commissions and/or Committees (p. 25)

V. IMPROVING ACCESS FOR PERSONS WITH DISABILITIES

Use of Technology (p. 27)

17. Permit the Chief Electoral Officer to use or adapt new technologies to assist persons with disabilities to vote.

Transfer Certificates (p. 28)

18. Permit electors with a disability to apply, up to and including polling day, to transfer to a more accessible polling location.

d) RECOMMENDATIONS FOR THE CHIEF ELECTORAL OFFICER…

…Persons with Disabilities (p. 36)

29. The Chief Electoral Officer continue to work closely with the community of persons with disabilities on developing additional services, such as

(a) information, e-mail access and special ballot registration forms available on the Elections Ontario website;

(b) a sign-language DVD with open- and closed- captioning for people who are deaf, deafened, or hard of hearing; and

NOTE: The Conservative and NDP members of the Select Committee on Elections filed dissenting reports on certain issues, none of which addressed the accessibility issues of voters and candidates with disabilities.