Revising Agent's Manual
This section covers the following topics:
- Canadian Human Rights Act
- Canadian Charter of Rights and Freedoms
- Case Study - Rev. James Peter Hughes
Canadian Human Rights Act
2."[…] all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated....without being hindered in or prevented from doing so by discriminatory practices based on a prohibited ground."
3.(1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has been granted.
5. It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual, on a prohibited ground of discrimination.
Canadian Charter of Rights and Freedoms
15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
James Peter Hughes v. Elections Canada - Summary
Rev. Hughes and his wife lived for many years in the United States. They moved back to Canada upon retirement. Rev. Hughes uses a wheelchair or walker. They live in a condo in downtown Toronto, near St. Basil's Church, the polling location used in the two electoral events at issue in the case. Mr. Hughes testified that the March 2008 by-election was his first time voting in a Canadian election since he lived in Quebec in the 1970s.
1) First Electoral Event
On March 17, 2008, he proceeded using his walker to vote at St. Basil's Church in downtown Toronto. St. Basil's has three entrances: entrance #1 (main one, south side); entrance #2 (back one, north side); and entrance #3 (side one, west side).
From the street, the Complainant walked up a sloped hill on a long, winding path to entrance #1. At the front door was a handicap ramp which Rev. Hughes found to be acceptable. He found some "cryptic, yellow" EC signs, but they pointed away from entrance #1 and toward entrance #3. Entrance #1 was locked. Rev. Hughes proceeded around the building to entrance #3. When he opened the door, he found a flight of stairs leading downward.
Rev. Hughes was not able to get down the stairs without assistance. He called out for assistance, and someone who appeared to be an EC official came over and told him he could either come down the stairs or walk around the building (to entrance #2). Rev. Hughes chose to stay at entrance #3. The official took his walker down the stairs and Rev. Hughes then proceeded to go down the stairs on the seat of his pants. The walker was put back together and Rev. Hughes walked down the hallway to the election polling stations in the basement hall.
However, when he arrived 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. While in the Church basement hall, Rev. Hughes told an EC official about his "difficult voting experience." Rev. Hughes recalled that the person replied that the lack of accessibility was for financial reasons.
After Rev. Hughes marked his ballot, his departure was no less difficult. Rather than go back through entrance #3, the EC officials offered to help him leave through the back way, entrance #2, adjacent to the parking lot. Rev. Hughes had to walk up a steep, narrow ramp which caused him great difficulty with his walker. The two doors leading out to the parking lot, which were heavy, steel doors, were not open. There was no automatic opening mechanism and only one of the two doors was openable. Rev. Hughes' walker had to be folded in order to get it through. Outside the doors, there was snow on the ground which had not been sufficiently cleared. The width shoveled looked like it had been done with ambulatory people in mind. It was barely wide enough for his walker's wheels, and not wide enough for a person using a wheelchair. There was a sloped ramp downward which was described by Rev. Hughes as steep and slippery. Rev. Hughes could not have exited through entrance #2 without assistance.
2) Written Complaint to EC, Complaint to CHRC, and EC's responses
In addition to his verbal complaint on the day of the election, Mr. Hughes made a written complaint to EC on March 20, 2008 with the assistance of his counsel. Although it was addressed correctly it was routed to the wrong official at EC. It was then forwarded to the Legal Services Directorate at EC. Rev. Hughes heard nothing from EC regarding his verbal and written complaints to it (other than a letter from the official who had originally received the letter indicating that it had been forwarded to Legal Services) until receiving EC's August 6, 2008 letter to the Commission. On June 5, 2008, Rev. Hughes had filed a CHRA Complaint with the Commission. The August 6th letter was EC's response to the CHRA Complaint. EC had its officials investigate Rev. Hughes' Complaint, although he didn't speak to them directly about it and didn't personally speak to the Toronto Centre Returning Officer or other relevant EC officials at the St. Basil's Church polling stations.
The Tribunal found that EC's response to the written complaint to EC and to the CHRA complaint was not timely, contained inaccuracies, and was dismissive in tone. In the August 6th letter, EC made a number of factual errors including stating that all three entrances were unlocked during voting hours.
3) The Second Electoral Event
On October 14, 2008, Canadians went to the polls in a federal general election. Mr. Hughes received a Voter Information Card, indicating that his polling station would be at St. Basil's Church once again. The Card had the universal accessibility symbol on it. Mr. Hughes was hopeful that things would be different this time, and that EC had addressed his concerns.
However, Rev. Hughes 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. He could not open the heavy steel door himself. With assistance, he entered via entrance #2, voted and left the same way. Rev. Hughes was quite upset that, notwithstanding his verbal and written complaints to EC some seven months earlier and his June 2008 Complaint to the Commission, EC had not remedied the problem by providing a barrier-free polling facility to exercise his important democratic right to vote.
4) Post-Election, Tribunal Hearing and Decision
Following the election, the Commission referred the subject-matter of the Complaint to the Tribunal on December 29, 2008. EC commissioned architect and accessibility expert Robert Topping to do an on-site inspection of St. Basil's Church and report on certain accessibility issues in March 2009. He outlined some of the problems with the St. Basil's facility from a barrier-free perspective. As a result of Rev. Hughes' Complaint, Mr. Topping's report, the steepness of the incline and better alternative locations in the area, prior to the hearing EC decided that it would no longer use St. Basil's Church as a polling location, notwithstanding some of its "significant advantages" (e.g., parking, community use and prior election use).
The Canadian Human Rights Tribunal held a hearing on Rev. Hughes' complaint in October, 2009 and rendered a decision on February 12, 2010. EC admitted liability at the beginning of the hearing. EC's official at the hearing testified that EC has learned a lot from the negative voting experience of Rev. Hughes, and it has made improvements. EC also agreed to many of the systemic remedies requested by the Complainant. However, EC argued that the evidence did not demonstrate a systemic problem, but rather that it was a case of human error - of people not doing things correctly within the system that was in place.
The Tribunal pointed out that the system is made up of people, and that the "problem is not so much the standards or policies on accessibility, or EC's training in regard to them", but "[t]he problem is more in the nature of the policies and guidelines and training not being followed or applied by EC officials". The Tribunal reiterated the importance of the right to vote, and that it is protected in the Charter. The Tribunal also stated that it is arguably a duty of citizens of Canada to vote, and that the State has a legal duty to ensure that all barriers, whenever possible, are removed. The Tribunal also relied upon the evidence of disability rights/accessibility expert Professor Catherine Frazee who explained the barriers that people with disabilities face in society, structurally and attitudinally, including details of "disability disadvantage".
The Tribunal awarded Rev. Hughes damages for compensation for pain and suffering. The amount was based in part on the fact that "voting is one of the most sacred rights of citizenship and that includes the right to do so in an accessible context." However, the majority of the remedies are systemic in nature and most are to be completed by EC within either 6 months or 12 months. (The time frames are to be suspended for three months in the event of a general election, other than the time frames for the individual remedies and the cease order.) The Canadian Human Rights Commission has a monitoring role over the implementation of the decision, and EC is to consult with the other parties (the Complainant, the Commission, and the Council of Canadians with Disabilities who intervened as in interested party in the case.) The following list is a summary of the systemic remedies that the Tribunal has ordered Elections Canada to carry out:
A- Greater consultation with voters with disabilities and disability groups, with a consultation plan to be formulated within 6 months upon discussion with other parties.
B- Cease order re situating polling stations in locations that do not provide barrier-free access, subject to standard of bona fide justification and the duty to accommodate to the point of undue hardship, once a prima facie case of discrimination has been established.
C- Implement a procedure for verification of accessibility of facilities on the day of an electoral event and consult with other parties regarding same.
D- Review of Accessible Facilities Guide, Accessibility Checklist, and accessibility sections of the Manuals for ROs and other categories of election workers (CPSs, DROs, Poll Clerks, Information Officers and Registration Officers), and consult with other parties about same.
E- Revise standard lease for polling locations to include the requirement that the leased premises provide level access and are barrier-free, and consult with other parties about same.
F- 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, and consult with other parties about same.
G- Review, revise and update training manuals and programs concerning accessibility issues for ROs and officials below them, and training to 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. EC officials are to be trained as well on the new public complaints process. The training materials are to include the Hughes v. Elections Canada reasons for decision, and a case study made from it for training purposes. EC is to consult with other parties about same.
H- Implement a procedure for receiving, recording and processing verbal and written complaints about lack of accessibility and suitably publicize same. EC shall execute this reporting requirement for a period of three complete general election cycles. EC is to consult with other parties about same.
I- Elections Canada is to report to the Tribunal in at least three-month intervals about its progress in implementing the Order, and the Tribunal remains seized in the 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 the Order, including any further implementation Orders as required.
Case Study - Rev. James Peter Hughes
In compliance to the orders of the decision by the Canadian Human Rights Tribunal, Elections Canada has put in place several new procedures to ensure polling sites are accessible for all electors. Following the reading of the summary, reflect on the following questions:
- How would you have reacted had you had been in Rev. Hughes' position?
- Remembering what you have learned on the duty to accommodate, how would you have reacted if you had been in the position of the election official who was providing assistance?
- How could the situation have been handled differently? What steps could have been taken to address the obstacles to accessibility?
- With the new accessibility procedures that Elections Canada has put in place, how would this incident be resolved differently if it happened during the next general election?