Preliminary Analysis of Proposed Amendments to Bill 231

April 14, 2010

SUMMARY

Today we learn whether MPPs will vote for or against ensuring that all elections in Ontario are fully accessible to voters with disabilities. There are amendments now before the Standing Committee on the Legislative Assembly which will force MPPs to make a clear choice, either for or against full accessibility of elections.

We have rushed to assemble this very preliminary analysis of the proposed amendments to Bill 231, which the Standing Committee on the Legislative Assembly will consider on April 14, 2010. We are non-partisan, and simply offer an appraisal of what was put forward. Due to time limitations, this analysis is not comprehensive, and may require further study.

In general, of the three parties’ packages of amendments, the NDP’s is the strongest on disability accessibility. The NDP package implements the broadest range of the recommendations that the AODA Alliance put forward. Taken together, the amendments proposed by the two opposition parties would go a long way to ensure fully accessible elections in Ontario.

The Liberal package is clearly the shortest and weakest, from the perspective of disability accessibility. It would not ensure fully accessible elections in Ontario now or ever.

We understand that the Conservatives may offer additional amendments before the Standing Committee on the Legislative Assembly session begins. If so, we will be in a better position to fully assess the Conservatives’ package once we have all their proposals in hand.

MORE DETAILS

Due to limited time, we first focus this analysis on the Government’s amendments package. The Government holds a majority of the votes in the Legislature. Their amendments are certain to pass unless the Government is persuaded otherwise.

We first review the Government’s amendments. We then provide a summary of the NDP amendments, followed by the Conservative Party’s amendments provided to date.

THE GOVERNMENT’S AMENDMENTS

1. Accessible Voting Machines for Voters Who Cannot Independently Mark A Paper Ballot and Verify Their Choice:

The Government’s amendments continue to bar the use of telephone voting and internet voting, because they forbid any voting machines that are connected to a network. This would create a legal barrier to effective and more cost-effective options for enabling voters with disabilities to conveniently and independently vote.

The Government’s amendments seem to continue to lock the Government into the one kind of accessible voting machine that Elections Ontario has piloted. The Government’s Chair of the Select Committee on Elections, Liberal MPP Greg Sorbara, felt that machine was far too expensive to place in every polling station. (See the Standing Committee on the Legislative Assembly proceedings on March 31, 2010. You can see excerpts by clicking here:
http://www.www.aodaalliance.org/whats-new/newsub2011/text-of-the-aoda-alliances-march-31-2010-presentation-on-bill-231-to-the-ontario-legislatures-standing-committee-on-the-legislative-assembly/

The Liberal amendments would only require an accessible voting machine in a riding’s Returning Office during advanced polls, and in one single location in each riding on election day in a general election. They state:

“(3) 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

(4) At a general election, the accessible voting equipment and related vote counting equipment shall be made available in every electoral district.”

That would be fair, if there was only one polling station in each riding for all voters without disabilities on election day. However, on election day, there are many polling locations in each riding. Voters without disabilities get to go to a polling station in their neighbourhood. In contrast, a voter with a disability who cannot independently mark and verify their own paper ballot must find their way to the one single location in their riding where there will be an accessible voting machine, if they want to be able to independently mark their ballot in private, and verify their choice. That is not equal treatment of persons with disabilities.

Had the Government’s amendments mandated technology such as telephone voting, possibly combined with an option for internet voting, voters with disabilities would not need to be subjected to the added and unfair burdens that the Liberal amendments would impose. This is an especially troubling burden, in rural and northern ridings. There it can be a long trip to get to the one location where the accessible voting machine might be situated.

It is also unfair in urban ridings. A large percentage of persons with disabilities are seniors. To require seniors who are losing their vision, and possibly their mobility, to have to make their way across their riding – even an urban riding—to find the one location with an accessible voting machine, is an unfair burden to which voters without disabilities are not subjected.

The Government amendments still tie Ontario to technology that produces a paper ballot. Telephone and internet voting can generate paper ballots. However, maximum flexibility would be attained if the paper ballot requirement were not mandatory.

2. The Need for an Effectively Enforceable Right for All Polling Stations to be Fully Accessible to Voters with Disabilities

The Government amendments make a limited effort at addressing the need for an enforceable right to fully-accessible polling stations. The Government amendments baldly state that all polling stations must be “accessible”. They provide no definition of accessibility, nor any legal criteria for accessibility. They state:

“Accessibility

13.1 (1) In establishing the locations of polling places under section 13, the returning officer shall ensure that each polling place is accessible to electors with disabilities.”

This merely repeats what is already the law, according to the thrust of what Ontario Human Rights Chief Commissioner Barbara Hall presented to the Standing Committee on the Legislative Assembly on March 24, 2010, and according to the Canadian Human Rights Tribunal ruling in Hughes v. Elections Canada. That decision is available by clicking here:
http://www.www.aodaalliance.org/whats-new/newsub2011/landmark-canadian-human-rights-tribunal-ruling-requires-polling-stations-to-be-accessible-to-voters-with-disabilities-in-federal-elections/

We asked the Standing Committee to include mandatory accessibility criteria in the bill and to require Cabinet to make regulations to further spell out the accessibility Elections Ontario must provide when choosing polling station locations. The Government’s amendment is clearly insufficient since Elections Ontario seems to still be learning about the concept of accessibility as it applies to polling stations. In his March 24, 2010 presentation to the Standing Committee on the Legislative Assembly, Chief Electoral Officer Greg Essensa had this exchange:

“Mr. Greg Sorbara: Given the hundreds and hundreds of polling stations across the province, what percentage would you say are accessible now? How are we doing, in other words?

Mr. Greg Essensa: What was reported after the 2007 general election was that 99% of our polls were accessible. What we understand better now is—as we’re learning more and more about accessibility features, and the standards are being reviewed under the AODA, I think that we are quite confident that some of those numbers perhaps weren’t exactly accurate, given the standards that we would apply today.

One of the things that we are doing at Elections Ontario now is embarking on a fairly aggressive consultation process where we will be working with focus groups to assess what the quality standards and accessibility standards need to be and what the barriers are that we need to remove to ensure that we can comply and become as fully accessible as possible, given the current restraints that perhaps pertain in some locations that we need to utilize for voting. We intend to fully engage the disability community in those consultations to ensure that the standards that we put in place—that we get them right.”

It is helpful that the Government amendments at least partially adopt an idea we presented. They require Elections Ontario to make public intended polling station locations six months before an election, so persons with disabilities can give feedback in advance of voting day on any accessibility problems. The Government’s amendments state:

“13.1 (1) In establishing the locations of polling places under section 13, the returning officer shall ensure that each polling place is accessible to electors with disabilities.

Application

(2) Subsection (3) applies only with respect to general elections held under subsection 9 (2).

Posting for comment

(3) The returning officer shall provide the following information to the Chief Electoral Officer, who shall publish it on a website on the Internet:

1. The proposed locations of polling places.

2. Details about steps that could be taken to ensure the accessibility of those locations.

3. An invitation to members of the public to comment, within one month after the posting, on whether the proposed locations are sufficiently accessible.

Time for posting

(4) The posting described in subsection (3) shall take place at least six months before polling day.”

However, this amendment lacks the required teeth to make it effective. It does not require Elections Ontario to consider and act on the feedback it receives from persons with disabilities. It does not require Elections Ontario to give reasons if an accessibility objection is raised, but Elections Ontario does not act on it. It provides no right of appeal from any decision by Elections Ontario not to fix an accessibility problem that voters with disabilities identify.

It only requires Elections Ontario to post its intended polling station locations on a website. Further publicity is needed to ensure that this information reaches a wide range of voters with disabilities. It is not enough to just reach internet users. Moreover, internet users are not likely to keep visiting Elections Ontario’s website every day in hopes that one day these polling locations will be posted.

3. The Need for Elections Ontario to Provide Accessible Information

The Government’s amendments seek very modestly to address the need for Elections Ontario to provide information in a format that is accessible to voters with disabilities. They state:

“Accessible format

114.3.1 Every report, direction or notice that this Act requires the Chief Electoral Officer to publish shall be made available to persons with disabilities in a manner that takes their disabilities into account, in accordance with the Accessibility for Ontarians with Disabilities Act, 2005 and the regulations made under that Act.”

All this appears to say is that Elections Ontario must obey the AODA. An amendment is hopefully not needed to do this. Moreover, there are no regulations under the AODA that now impose any obligations regarding accessibility of information. The proposed Information and Communication Accessibility Standard has not been enacted. Even if it is enacted later this year, it may not come into force until after the 2011 election.

This falls far short of what the AODA Alliance proposed. We wanted detailed information accessibility requirements written into the bill. Moreover, this amendment does not even hold Elections Ontario to the level of accessibility required under the Ontario Human Rights Code. It only refers to the AODA.

4. The Need to Address Barriers During Election Campaigns

The Government amendments do not address any barriers during the election campaign e.g. inaccessible all-candidates’ debates.

5. The Need to Address the same Accessibility Barriers in Municipal Elections

The Government amendments do not address any of the barriers in municipal elections. We had urged that the bill be amended to address the same solutions to the same barriers in both provincial and municipal elections.

THE NDP AMENDMENTS

The NDP’s proposed amendments go much further to address our concerns. They suffer from none of the concerns listed above in the Government’s amendments. They provide for:

Detailed requirements for full polling station accessibility.
Full availability of accessible voting technology, free from the barriers imposed by the Government’s amendments.
Detailed requirements for making information from Elections Ontario available and accessible to voters with disabilities.
Requirements to increase accessibility of election campaigns.
Provisions to make it easier for voters with disabilities to get a home visit by Elections Ontario.
Provisions to make Elections Ontario more publicly accountable.
A provision requiring Cabinet to make accessibility regulations where needed to bring the bill into effect.
Providing for an independent post-election review of election accessibility.
A provision to globally apply the bill’s accessibility requirements to municipal elections.

CONSERVATIVE AMENDMENTS AVAILABLE TO DATE

The Conservative amendments available to date would:

ensure that the bill’s accessibility requirements do not reduce accessibility guarantees under the Human Rights Code or Accessibility for Ontarians with Disabilities Act.
remove restrictions in the bill on the kind of accessible voting equipment that can be used, and requiring that it be available at the next general election after 2011.
require election day to be a school professional development day, potentially freeing-up more venues for polling stations.
provide for making accessibility standards regarding polling stations and requiring Elections Ontario to take all reasonable steps to comply with them.
make the option of home visits by Elections Ontario, for voters with disabilities who cannot go to a polling station, more available, including a right of appeal for voters with disabilities who are refused this accommodation Elections Ontario.
impose detailed website accessibility requirements that we proposed.
provide for an independent post-election review of election accessibility.