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Electoral Insight – Persons with Disabilities and Elections

Electoral Insight – April 2004

The Evolution of Federal Voting Rights for Canadians with Disabilities

Diane R. Davidson
Deputy Chief Electoral Officer and Chief Legal Counsel

Miriam Lapp
Senior Analyst, National and International Research and Policy Development
Elections Canada


At federal elections, voters with visual disabilities may use this cardboard template that has holes enabling them to feel where to mark the ballot for their preferred candidate.

Canada's federal electoral process has become progressively more accessible, in large measure because of the efforts of persons with disabilities. In their quest for electoral equality, groups representing persons with disabilities have adopted a wide range of methods. They have challenged discriminatory laws and practices through the courts, appeared before parliamentary committees and the Royal Commission on Electoral Reform and Party Financing, and developed recommendations and draft legislation. In addition, these groups have provided valuable advice and expertise to the Chief Electoral Officer.

At the same time, successive Chief Electoral Officers have adopted a number of administrative measures to increase the accessibility of the voting process, particularly access to polling stations and information for electors with disabilities.

This article provides an overview of the legal and administrative changes that have taken place over the past 30 years, and concludes that more can be done to ensure that Canada's federal electoral process is as accessible as possible to all Canadians.

The right to vote in Canada

At the federal level in Canada today, every citizen who is 18 years of age or older on election day is entitled to vote.Footnote 1 Until 1993, however, the Canada Elections Act excluded from voting "every person who is restrained of his liberty of movement or deprived of the management of his property by reason of mental disease."Footnote 2 This provision was eliminated in April 1993 by Bill C-114.

The 1993 amendment may be seen as a response to the October 1988 ruling by the Federal Court of Canada, which declared the provision to be invalid on the grounds that it conflicted with section 3 of the Canadian Charter of Rights and Freedoms, which guarantees every citizen of Canada the right to vote. In explaining her ruling, Madame Justice Reed noted that while section 1 of the Charter allows for limitations that are demonstrably justifiable in a free and democratic society, and that "a requirement of mental competence or judgmental capacity" may well constitute such a limitation, the section of the Act "as presently drafted does not address itself only to mental competence or capacity insofar as that quality is required for the purposes of voting." She went on to describe the limitation as "arbitrary", noting that "it catches people within its ambit who should not be there and, arguably, it does not catch people who perhaps should be."Footnote 3 Madame Justice Reed also made reference to two parliamentary committee reports,Footnote 4 as well as to changes that had been made to the law in OntarioFootnote 5 and Manitoba.Footnote 6

The House of Commons Special Committee on the Disabled and the Handicapped had recommended amending the Act as early as 1981, while the Chief Electoral Officer of Canada had, on a number of occasions, encouraged Parliament to seriously examine paragraph 14(4)(f) in light of the probability of a Charter challenge.Footnote 7

In fact, Parliament had attempted to address this issue in 1987. Bill C-79 would have repealed paragraph 14(4)(f). However, Bill C-79 died when Parliament was dissolved for the November 21, 1988, federal general election.

The Federal Court's decision was delivered on October 17, 1988 – in the midst of that election. Consequently, paragraph 14(4)(f) was not in effect for that election, and those individuals who had previously been disqualified could vote.

The Royal Commission on Electoral Reform and Party Financing also examined this question. In its final report, tabled in the House of Commons in February 1992, the Commission recommended that:

"… the following persons not be qualified to vote in federal elections: 1) a person subject to a regime established to protect the person or the person's property, pursuant to the law of a province or territory, because the person is totally incapable of understanding the nature and consequences of his or her acts; and 2) a person confined to a psychiatric or other institution as a result of being acquitted of an offence under the Criminal Code by reason of insanity."Footnote 8

It is interesting to note, then, that Parliament's response to this question went beyond the requirements of both the 1988 court ruling and the 1992 recommendation by the Royal Commission – neither of which had demanded the complete repeal of paragraph 14(4)(f). As a result, mental disability no longer restricts access to the federal franchise. Indeed, according to a recent study of electoral laws in 63 democracies, only four countries – Canada, Ireland, Italy and Sweden – have no restrictions at the national level on the right to vote for persons with mental disabilities.Footnote 9

Beyond the basics: Ensuring the vote is accessible to all


The 1981 report of the House of Commons Special Committee on the Disabled and the Handicapped showed that there were still many barriers to voting.

While removing legal disqualifications is an essential element in ensuring the universality of the right to vote, it is not the whole story. Equally important are the many legislative and administrative measures that have been adopted over the past 30 years to make the electoral process accessible to all Canadians.

Before 1982

Legislative changes to facilitate voting by persons with disabilities predate the Charter. In 1977, for example, Parliament amended the Act to require a minimum number of advance polls in places with level access. This is not to say that voting was fully accessible at that time. In 1981 (International Year of the Disabled), the House of Commons Special Committee on the Disabled and the Handicapped released a report, Obstacles, which showed that many barriers remained. Among the Committee's recommendations were that Canada establish a "postal vote system similar to Manitoba's" to make voting more accessible; that the Chief Electoral Officer cease the practice of centralizing polling places and accommodate, as fully as possible, the mobility problems of persons with disabilities; and that the Chief Electoral Officer establish orientation sessions for polling place personnel on the needs of voters with disabilities.Footnote 10

1982–1987: Consultations and recommendations

Shortly after the release of Obstacles, the Chief Electoral Officer appeared before the Committee to discuss its recommendations and to examine the measures that would be needed to implement the proposed changes. His 1983 statutory report to Parliament provides an overview of those discussions.Footnote 11 That report also shows that Elections Canada had already implemented, at least on a limited basis, several administrative measures recommended by the Committee, or was planning to implement them for the next election. Examples include the placing of polling stations in nursing homes or chronic care hospitals, and the implementation of orientation sessions for polling station personnel. With respect to the recommendations for accessibility of polling stations and the offices of returning officers, the Chief Electoral Officer expressed full support and pointed out that he had urged returning officers to locate their offices in public and accessible buildings, but that the legislation did not give him the authority to force them to do so.

This is a photograph of a disabled person in a wheelchair, who is being observed by another person, as he uses a keyboard

This early episode shows that where the Chief Electoral Officer had the authority to do so, he was already implementing administrative measures to improve accessibility for voters with disabilities. To achieve those changes that were not within his legislative authority, the Chief Electoral Officer recommended that Parliament enact the necessary amendments.

The 1983 report also reveals that Elections Canada had adopted the practice of consulting groups that represent persons with disabilities. For example, to prepare orientation sessions for polling station personnel, Elections Canada consulted the Coalition of Provincial Organizations of the Handicapped, the Causeway Work Centre, the Canadian Mental Health Association, the Canadian Association for the Mentally Retarded and the National Institute for Mental Retardation, the Canadian Rehabilitation Council for the Disabled and the Canadian Hospitals Association.Footnote 12

The Chief Electoral Officer made additional recommendations on accessibility in his 1984 report. Among these were that all revisal offices and advance polling stations be required to have level access, and that election officers be authorized, where necessary, to take the ballot box outside the polling station to permit an incapacitated elector to vote.Footnote 13 These recommendations were reiterated in his 1985 report, which also recommended that proxy voting be made easier.Footnote 14

1988–1992: Implementation in the absence of legislation

In 1987, Parliament attempted, through Bill C-79, to respond to some of the recommendations of the Chief Electoral Officer and the House of Commons Special Committee. Among its provisions was a requirement that the offices of returning officers, all advance polling stations and all centralized polling places be located in buildings with level access. Bill C-79 died when the 1988 election was called, but the Chief Electoral Officer proceeded to implement its level access measures. A level access policy was developed in consultation with the Barrier-Free Design Centre, a non-profit organization that also drew up standards for the construction and installation of temporary or permanent ramps, the posting of information placards and the construction of other special facilities at polling stations.Footnote 15

Following the 1988 election, returning officers were required to submit detailed reports on the steps they had taken to implement the level access policy. These reports indicated that 1,048 ramps were installed, providing level access to 4,834 polling stations. Overall, more than 92% of polling stations had level access.

1992: Bill C-78 and the Charlottetown Accord referendum


At Canadian federal elections, electors with physical disabilities may request assistance, including help in marking the ballot.

Major legislative changes to guarantee accessibility took place in June 1992, when Bill C-78 was passed.Footnote 16 These amendments to the Canada Elections Act resulted from a number of factors.

First, the disabilities community had made significant input. In addition to appearances by groups representing persons with disabilities before parliamentary committees studying this bill, the Canadian Disability Rights Council, with funding from the Secretary of State's Disabled Persons Participation Program, prepared a detailed package of legislative reform proposals.Footnote 17 Many of these proposals were included in the final draft of the bill.

Second, Elections Canada contributed research and legal advice to the parliamentary committees charged with studying this bill.

Finally, section 10 of Bill C-78, which guaranteed level access to polling stations, may be seen as a response to the February 1992 decision by the Canadian Human Rights Tribunal,Footnote 18 which found that Elections Canada had discriminated against persons with disabilities during the 1984 federal election by failing to provide adequate access for persons in wheelchairs at several Manitoba polling stations.Footnote 19 However, it seems likely that a provision for level access would have been included in any event, as this was a measure the Chief Electoral Officer had been recommending for several years. In fact, the Tribunal noted with approval that Elections Canada had already taken significant measures to implement a policy of level access by 1988.

As to the Canada Elections Act, Bill C-78 amended it to provide for:

In the three months between the passage of Bill C-78 and the issue of the writs for the 1992 referendum on the Charlottetown Accord, Elections Canada was able to implement all of the measures in the bill. This quick implementation was made possible, in large part, by previous administrative initiatives, such as the introduction of a template for persons with visual disabilities in 1979 and the provision of level access in most polling stations in 1988.Footnote 20 In addition, Elections Canada:

1993: Bill C-114

Following recommendations from the Royal Commission on Electoral Reform and Party Financing (tabled in February 1992), Parliament passed Bill C-114 in May 1993. Notable among the administrative reforms brought about by this law was the extension of special ballot voting (i.e. voting by mail) to all electors. This effectively replaced proxy voting as an additional method of voting for persons with disabilities.Footnote 21

Building on the measures introduced in 1992, Elections Canada created a checklist to help returning officers assess the accessibility of revisal offices and polling stations. The assessments resulted in a computerized database of 17,000 suitable sites across the country. Used primarily by Elections Canada to identify where resources are needed to achieve accessibility, this database was also made available to interested provincial and municipal electoral organizations.Footnote 22 In addition, consultations were carried out with more than a dozen groups representing people with disabilities and as a result, the number of mobile polls was increased, and signage at polling stations was improved.

2000 general election

Elections Canada continued to work with groups representing persons with disabilities to improve its products and services. Notably, this included:

Voting by Special Ballot

Many electors cannot or do not wish to vote at their own polling stations on election day or during advance voting. They may have physical or other disabilities, be hospitalized in an acute care facility or be students living away from home. They may be travelling or working away from their electoral districts or residing temporarily outside Canada. In light of this, Parliament took a major step forward in 1993 in Bill C-114, which extended the use of the special ballot to all electors. Voting by mail was formerly available only to members of the Canadian Forces and Canadian diplomats. Since 1993, all electors may register and vote by mail or in person at the office of the returning officer.

This is a graphic of a hand using a pencil to write the name of the preferred candidate on a special ballot that is often used at federal elections by persons with physical or other disabilities.

Those voting by special ballot use a voting kit that includes a unique system of three envelopes to ensure secrecy. On a blank ballot, the elector writes the name of the preferred candidate. It is the voter's responsibility to obtain information about the candidates; although, once candidates are confirmed, a list for the appropriate riding is included with the kit. The voter must have a Canadian address and his or her vote is counted for the electoral district of that address. He or she must register to vote by special ballot before 6:00 p.m., on the sixth day before election day. Registration forms are available from the offices of returning officers (after the writs are issued) or from Elections Canada (www.elections.ca under "Registration of Electors").

Electors absent from the electoral district of their ordinary residence must ensure that their completed ballots arrive at Elections Canada before 6:00 p.m., Ottawa time, on election day. Canadian residents voting in their own ridings must ensure that the returning officer receives the completed ballot before the polling stations in the electoral district close on election day.

The special ballot is also used by Canadian Forces electors and incarcerated electors, using different procedures from other special ballot voters.

Almost 192,000 electors voted by special ballot in the 2000 general election.

Conclusion

While significant progress has been made, the task of ensuring that the federal electoral process is fully accessible is far from complete. Based on the experience of the 2000 general election, it would appear that improvements could be made in the following areas:

On the third point, it is worth noting that of all the stakeholder groups surveyed by Elections Canada following the 2000 election, groups representing persons with disabilities were the most supportive of using the Internet for such activities as registering to vote, finding out where to vote and even voting itself. Fully 64% indicated they would be interested in voting on-line during future elections, if technology allows. By comparison, support for on-line voting among the general population was only 47%.

Although much has changed over the past 30 years to make the federal electoral process more accessible, more can be done. While a good deal can be accomplished through administrative measures, further changes to the Canada Elections Act may be required. Working in partnership with groups representing persons with disabilities, Elections Canada will continue to seek ways to improve its programs and services, so that all Canadians can exercise their democratic right to vote freely and with as few difficulties as possible.

Notes

Footnote 1 The only exceptions are the Chief Electoral Officer and the Assistant Chief Electoral Officer (Canada Elections Act, s. 4).

Footnote 2 Canada Elections Act, 1970, c. 14, s. 14(4).

Footnote 3 Canadian Disability Rights Council v. Canada, 1988.

Footnote 4 Canada, House of Commons, Report of the Special Committee on the Disabled and the Handicapped: Obstacles (Ottawa: Queen's Printer, February 1981), Recommendation 9, p. 24.

Canada, House of Commons, Report of the Parliamentary Committee on Equality Rights: Equality for All (Ottawa: Queen's Printer, 1985), Recommendation 52, p. 91.

Footnote 5 The Ontario Election Act, 1984, S.O. 1984, c. 54, s. 14, provided for polling to take place in a variety of health institutions, including psychiatric hospitals. At the time of the court ruling, institutionalized mental patients in Ontario had voted in the previous two provincial elections and the 1985 municipal elections, and were being enumerated for the 1988 municipal elections.

Footnote 6 Part of s. 31(b) of The Elections Act of Manitoba, which disqualified patients in mental hospitals from voting, was struck down as being in violation of s. 3 of the Charter in Canadian Mental Health Association (Manitoba Division) v. Manitoba (Chief Electoral Officer) (March 17, 1988).

Footnote 7 Chief Electoral Officer of Canada, 1984 Statutory Report of the Chief Electoral Officer of Canada (Ottawa: Minister of Supply and Services, 1984), p. 19. See also the 1983 Statutory Report of the Chief Electoral Officer of Canada (Ottawa: Minister of Supply and Services, 1983), pp. 26 and 28; and the 1985 Report of the Chief Electoral Officer of Canada on Proposed Legislative Changes (Ottawa: Minister of Supply and Services, 1985), p. 3.

Footnote 8 Canada, Royal Commission on Electoral Reform and Party Financing, Reforming Electoral Democracy: Final Report, Vol. 1 (Ottawa: Minister of Supply and Services Canada, 1991), p. 41.

Footnote 9 Louis Massicotte, André Blais and Antoine Yoshinaka, Establishing the Rules of the Game: Election Laws in Democracies (Toronto: University of Toronto Press, 2004), p. 27.

Footnote 10 Obstacles, pp. 22–23.

Footnote 11 Chief Electoral Officer, 1983 Statutory Report, pp. 23–26.

Footnote 12 Chief Electoral Officer, 1983 Statutory Report, p. 24.

Footnote 13 Chief Electoral Officer, 1984 Statutory Report, pp. 42 and 50.

Footnote 14 Chief Electoral Officer, 1985 Report, p. 12.

Footnote 15 Chief Electoral Officer of Canada, 1989 Report of the Chief Electoral Officer of Canada (Ottawa: Minister of Supply and Services, 1989), pp. 31–32.

Footnote 16 Bill C-78 amended a total of six federal acts, including the Canada Elections Act, the Citizenship Act, and the Criminal Code.

Footnote 17 Canadian Disability Rights Council, Legislative Reform for People with Disabilities … Proposals for Change (Winnipeg, Manitoba: Canadian Disability Rights Council, September 1991).

Footnote 18 Canadian Paraplegic Association v. Elections Canada et al. (1992).

Footnote 19 Nancy Holmes, Legislative Summary: Bill C-78: An Act to Amend Certain Acts with Respect to Persons with Disabilities, Library of Parliament, LS-135E (1992), p. 9.

Footnote 20 Chief Electoral Officer of Canada, The 1992 Federal Referendum: A Challenge Met (Ottawa: Elections Canada, 1994), p. 15.

Footnote 21 In his report on the 1992 referendum (A Challenge Met, p. 54), the Chief Electoral Officer pointed out that many electors found proxy voting cumbersome and difficult. In particular, concerns were expressed about the requirement for a medical certificate to obtain a proxy certificate, as this often entailed paying a fee. Had they not been replaced by the extension of special ballot voting to all electors, the proxy voting provisions would almost certainly have required amendments.

Footnote 22 Chief Electoral Officer of Canada, Towards the 35th General Election (Ottawa: Elections Canada, 1994), p. 31.

Footnote 23 Chief Electoral Officer of Canada, Report of the Chief Electoral Officer of Canada on the 37th General Election Held on November 27, 2000 (Ottawa: Elections Canada, 2001), pp. 54–55.

This is a graphic of an invitation card being pulled from an envelope which displays the Elections Canada logo. The card invites Electoral Insight readers to write to the Chief Electoral Officer with comments about articles in the magazine.


Note: 

The opinions expressed are those of the authors; they do not necessarily reflect those of the Chief Electoral Officer of Canada.