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Judicial Recount handbook

Appendix A – Part 14 and Schedule 4 to the Canada Elections Act Footnote 25

Sections 299–312

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PART 14

JUDICIAL RECOUNT

Interpretation

Definition of "judge"

299. (1) In this part, "judge" means a judge who sits in the electoral district where the results are validated.

Power of judge

(2) A judge who is authorized by sections 300 to 309 to act may act, to the extent authorized, within or outside his or her judicial district.

Recount Procedure

Request by returning officer for recount

300. (1) If the difference between the number of votes cast for the candidate with the most votes and the number cast for any other candidate is less than 1/1000 of the votes cast, the returning officer shall make a request to a judge for a recount within four days after the results are validated.

Notice to candidates

(2) The returning officer shall notify each candidate or his or her official agent in writing of the request for a recount.

Recount automatic

(3) The judge shall fix the date for the recount to be conducted within four days after he or she receives the request.

Document to be supplied

(4) The returning officer shall attend the recount and shall bring all relevant election materials including

(a) the ballot boxes;

(b) the statements of the vote used to validate the results; and

(c) all ballots cast and statements of the vote made in accordance with Part 11.

Application for recount

301. (1) An elector may, within four days after the day on which a returning officer issues a certificate under section 297 and after notifying the returning officer in writing, apply to a judge for a recount.

Grounds for recount

(2) The judge shall fix a date for a recount if it appears, on the affidavit of a credible witness, that

(a) a deputy returning officer has incorrectly counted or rejected any ballots, or has written an incorrect number on the statement of the vote for the votes cast for a candidate; or

(b) the returning officer has incorrectly added up the results set out in the statements of the vote.

Deposit

(3) The applicant shall deposit with the clerk or prothonotary of the court the sum of $250 as security for the costs of the candidate who obtained the largest number of votes.

Date of recount and summons

(4) The date fixed for the recount shall be within four days after the judge receives the application. The judge shall summon the returning officer to attend and to bring the relevant ballot boxes and statements of the vote together with the ballots that were counted, and the statements that were completed, under Part 11.

Notice to candidates

(5) The judge shall notify each candidate or his or her official agent in writing of the time and place fixed for the recount. The judge may decide that service of the notice will be substitutional, by mail or posting or in any other manner.

Returning officer required to attend

(6) A returning officer to whom a summons is directed under subsection (4) shall obey it and shall be present throughout the recount.

More than one application

302. If a judge receives more than one application for a recount for more than one electoral district, the recounts shall be conducted in the order in which the judge receives the applications.

303. Repealed (Candidate may attend – now in Schedule 4)

Recount procedure

304. (1) The judge shall conduct the recount by adding the number of votes reported in the statements of the vote or by counting the valid ballots or all of the ballots returned by the deputy returning officers or the Chief Electoral Officer.

Documents that may be examined

(2) If a recount of all of the ballots returned is required, the judge may open the sealed envelopes that contain the used and counted, unused, rejected and spoiled ballots. The judge shall not open any envelopes that appear to contain other documents or refer to any other election documents.

Procedure for certain recounts

(3) In the case of a recount conducted by counting the valid ballots or all of the ballots returned by the deputy returning officers or the Chief Electoral Officer, the procedure set out in Schedule 4 applies.

Power of judge

(4) For the purpose of arriving at the facts with respect to a missing ballot box or statement of the vote, the judge has all the powers of a returning officer with regard to the attendance and examination of witnesses who, in case of non-attendance, are subject to the same consequences as in the case of refusal or neglect to attend on the summons of a returning officer.

Additional powers of judge

(5) For the purpose of conducting a recount, a judge has the power to summon any deputy returning officer or poll clerk as a witness and to require him or her to give evidence on oath and, for that purpose, has the same power that is vested in any court of record.

Clerical assistants

(6) Subject to the approval of the Chief Electoral Officer, a judge may retain the services of support staff to assist in the performance of his or her duties under this Part.

Proceedings to be continuous

305. The judge shall, as far as practicable, proceed continuously with a recount, except for necessary breaks and, unless the judge orders otherwise, between 6:00 p.m. and 9:00 a.m.

Security of documents

306. (1) During a break described in section 305, the judge or any other person who has possession of ballots and other election documents shall keep them sealed in parcels, and the seal shall be signed by the judge and may be signed by any other person in attendance.

Supervision of sealing

(2) The judge shall personally supervise the parcelling and sealing of ballots and documents at a recount and take all necessary precautions for their security.

Judge may terminate account

307. Except in a case referred to in section 300, a judge may at any time terminate a recount on request in writing by the person who applied for the recount.

Procedure at conclusion of recount

308. At the conclusion of a recount, the judge shall

(a) seal the ballots in a separate envelope for each polling station and without delay prepare a certificate in the prescribed form that sets out the number of votes cast for each candidate;

(b) deliver the original of the certificate to the returning officer and a copy of it to each candidate; and

(c) return to the returning officer the election documents or other election materials brought for the purpose of the recount under subsection 300(4) and deliver to him or her the reports created in the course of the recount.

Costs

309. (1) If a recount does not alter the result of the vote so as to affect the return, the judge shall

(a) order the costs of the candidate for whom the largest number of votes have been cast to be paid by the person who applied for the recount; and

(b) tax those costs, following as closely as possible the tariff of costs allowed with respect to proceedings in the court in which the judge ordinarily presides.

Disposal of deposit and right of action for balance

(2) The money deposited as security for costs shall, as far as necessary, be paid out to the candidate in whose favour costs are awarded under subsection (1) and, if the deposit is insufficient to cover the costs, the party in whose favour the costs are awarded has their action for the balance.

Application for reimbursement of costs

310. (1) After a recount, a candidate may make an application to the Chief Electoral Officer for reimbursement of his or her costs in respect of the recount, setting out the amount and nature of the costs and whether they were actually and reasonably incurred.

Chief Electoral Officer determines costs

(2) On receipt of an application under subsection (1), the Chief Electoral Officer shall determine the costs, and shall make a request for reimbursement to the Receiver General, up to a maximum of $500 for each day or part of a day during which the judge conducted the recount.

Payment from Consolidated Revenue Fund

(3) The Receiver General, on receipt of a request for reimbursement from the Chief Electoral Officer, shall pay to the candidate the amount requested from the Consolidated Revenue Fund.

Failure of Judge to Conduct Recount

Failure of judge to act

311. (1) If a judge does not comply with the provisions of sections 300 to 309, an aggrieved party may, within eight days after the failure to comply, make application for an order under subsection (3)

(a) in the Province of Ontario, to a judge of the Superior Court of Justice;

(b) in the Province of Quebec, New Brunswick or Alberta, Yukon, the Northwest Territories or Nunavut, to a judge of the Court of Appeal of the Province or Territory;

(c) in the Province of Nova Scotia, British Columbia or Prince Edward Island, to a judge of the Supreme Court of the Province;

(d) in the Province of Manitoba or Saskatchewan, to a judge of the Court of Queen's Bench for the Province; and

(e) in the Province of Newfoundland and Labrador, to a judge of the Trial Division of the Supreme Court of Newfoundland and Labrador.

Application on affidavit

(2) An application under subsection (1) may be made on affidavit, which need not be entitled in any matter or cause, that sets out the facts relating to the failure to comply.

Order of judge

(3) The judge to whom an application is made under subsection (1) shall, if it appears that there was a failure to comply, make an order

(a) fixing the time, within the following eight days, and place to hear the application;

(b) directing the attendance of all parties interested at that time and place; and

(c) giving directions for the service of the order, and of any affidavit on which it was granted, on the judge alleged to have failed to comply and on any other interested party.

Affidavit may be filed in reply

(4) The judge complained of and any interested party may file in the office of the clerk, registrar or prothonotary of the court of the judge to whom the application is made affidavits in reply to those filed by the applicant and shall provide the applicant with copies of them on demand.

S.C. 2002, c. 7, s. 93.

Order of court after hearing

312. (1) After hearing the judge complained of and any other parties, the judge to whom the application was made or another judge of the same court

(a) shall make an order dismissing the application or ordering the judge in default to comply with the requirements of this Act in respect of the recount; and

(b) may make an order with respect to costs.

Judge to obey order

(2) A judge found to be in default shall without delay comply with an order made under subsection (1).

Costs

(3) Remedies for the recovery of costs awarded under paragraph (1)(b) are the same as for costs in ordinary cases in the same court.

SCHEDULE 4

(Subsection 304(3))

PROCEDURE FOR RECOUNTS

Persons Who May Be Present

1. Only the following persons may be present during the recount in addition to the judge, the returning officer and the staff that the returning officer asks to assist in the recount and the recount teams:

(a) the candidates;

(b) up to two representatives for each candidate who are not members of a recount team;

(c) one legal counsel for each candidate;

(d) legal counsel for the Chief Electoral Officer; and

(e) any other person that the judge allows.

2. Persons referred to in paragraph 1(e) may observe the conduct of the recount but shall not participate. They may bring any concerns they have to the attention of the returning officer who shall relay them to the judge. The judge shall take any measure that he or she considers appropriate.

Recount Teams

3. The judge shall, with the Chief Electoral Officer's approval, establish an appropriate number of recount teams, each consisting of two members appointed by the returning officer — one to have the responsibilities of handler and the other those of recorder — and one representative appointed by each candidate who wishes to be represented on the recount team. Each team is to be assigned a sequential team number, beginning with 1.

Process — General

4. Each recount team shall be assigned to a table and shall remain at its table except during breaks as directed by the judge. To the extent practical, these breaks shall commence only after the recount of a particular ballot box has been completed.

5. The functions of a recount team are the following:

(a) to examine the ballots in any ballot box assigned to it to ascertain whether the team agrees on their classification;

(b) to set aside for examination by the judge any ballots on whose classification there is not agreement ("disputed ballot"); and

(c) to count and report the number of ballots in each classification.

6. At any time during the recount, the candidates referred to in paragraph 1(a) may consent to having the judge conduct the recount by adding the number of votes reported in the statements of the vote, instead of the counting of ballots.

7. (1) The returning officer shall assign ballot boxes to recount teams throughout the recount in a manner that promotes the efficient and continuous counting of ballots, having regard to the number of ballots in each ballot box.

(2) A ballot box shall not be assigned to a recount team if the handler or the recorder of that team was assigned to the advance polling station or polling station from which the box originated.

8. Ballots cast under Part 11 of this Act shall be assigned to recount teams 1 to 3. The process set out in sections 10 to 18 shall be followed with any necessary modifications with regard to envelopes containing ballots cast under that Part. No other ballots or ballot boxes shall be assigned to those teams until the recount of those ballots has been completed.

9. Only the handler or the recorder of a recount team shall handle a ballot box or an envelope containing ballots that is assigned to his or her recount team or any other document or other election material that is in or accompanies the box or envelope.

Process — for Each Ballot Box

10. When a ballot box and the corresponding original statement of the vote are delivered to a recount team,

(a) the recorder shall note the number of the ballot box on the Recount Ballot Box Report in the prescribed form; and

(b) the handler shall open the ballot box, remove and open the large envelope referred to in subsection 288(3) of this Act and remove from it the envelopes containing ballots.

11. (1) The recount team shall examine the envelopes containing spoiled ballots and unused ballots without opening them.

(2) If there is any dispute concerning one of those envelopes or a request that one of them be opened, the question shall be determined by the judge.

12. The recount team shall recount first the ballots in the envelope containing the rejected ballots, if any — according to the criteria referred to in section 269, 279, 284 or 285 of this Act — and then, envelope by envelope in alphabetical order of the candidates' names, the ballots that were classified as valid votes in favour of candidates.

For Each Envelope — Review of Ballots

13. The recount of the ballots from each of those envelopes shall be conducted in accordance with the following steps:

(a) the handler shall choose the appropriate envelope;

(b) if any ballots were placed with that envelope as a result of the earlier examination of another envelope, the handler shall place those ballots in a single pile (the "counting pile");

(c) the handler shall unseal the envelope and, taking the first of those ballots,

(i) if a counting pile has already been established, place it on the counting pile, and

(ii) if no counting pile has yet been established, establish one with that first ballot;

(d) the handler shall invite all members of the recount team to examine — but not handle — the ballot;

(e) the handler shall ascertain whether there is unanimous agreement in the recount team that the ballot

(i) was correctly classified, or

(ii) should be assigned to some other classification;

(f) if there is no unanimous agreement, each representative of a candidate is entitled to call for one of their candidate's representatives who is not a member of a recount team or their candidate's legal counsel, or both, who may then make representations to the team;

(g) if, after any such representations, there is still no unanimous agreement on the classification of the ballot, the ballot shall be treated as a disputed ballot, in which case

(i) the handler shall take the ballot from the counting pile, print on the back of the ballot (with the pen or pencil supplied to the recount team in small but legible script), a number in the form "XX-Y" where "XX" is the ballot box number and "Y" is a unique sequential number starting at "1" for each disputed ballot within that box,

(ii) the recorder shall make an entry for the disputed ballot in the register of disputed ballots in the Recount Ballot Box Report, indicating its number and the envelope from which it originated, and

(iii) the handler shall put the disputed ballot with an additional envelope marked "disputed ballots";

(h) if there is unanimous agreement that the ballot was correctly classified, it shall remain on the counting pile;

(i) if there is unanimous agreement that the ballot should be assigned to some other classification, the handler shall take it from the counting pile and

(i) if the envelope containing ballots of that other classification has not yet been recounted, the handler shall place the ballot with that envelope and the recorder shall note the re-classification of the ballot and the reason for it on the Recount Ballot Box Report, and

(ii) if the envelope containing ballots of that other classification has already been recounted, the handler shall place the ballot in that envelope and the recorder shall note the re-classification of the ballot and the reason for it on the Recount Ballot Box Report and adjust the number of ballots recorded in the report for that other classification accordingly;

(j) for each subsequent ballot in the envelope, the handler shall place it on top of the counting pile, and steps (d) to (i) apply with respect to it; and

(k) when all ballots from the envelope have been examined by the team, the handler shall count the ballots in the counting pile, the recorder shall make a note of that number on the Recount Ballot Box Report and the handler shall place those ballots in the envelope without sealing it.

Preparation for Return of Ballot Box

14. (1) When all envelopes from the ballot box — except those designated as containing spoiled ballots and unused ballots — have been recounted, if there are any disputed ballots,

(a) the handler shall count the disputed ballots and place them in the disputed ballots envelope and indicate the number of the corresponding ballot box on the envelope;

(b) the recorder shall note the number of disputed ballots on the Recount Ballot Box Report, confirm the accuracy of the report with the recount team, invite the candidates' representatives to initial it and attach it to the disputed ballots envelope together with the corresponding original statement of the vote; and

(c) the handler shall not seal the envelope containing rejected ballots, if any, or the envelopes for each candidate, and shall place the envelopes, including the unsealed disputed ballots envelope, in the ballot box along with the Recount Ballot Box Report, the corresponding original statement of the vote and the large envelope.

(2) However, if there are no disputed ballots,

(a) the handler shall seal the envelope containing rejected ballots, if any, and the envelopes for each candidate and place them in the ballot box;

(b) the recorder shall confirm the accuracy of the Recount Ballot Box Report with the recount team, invite the candidates' representatives to initial it, and give it to the handler; and

(c) the handler shall place the Recount Ballot Box Report, the corresponding original statement of the vote and the large envelope in the ballot box.

(3) When the actions in subsection (1) or (2) have been completed, the handler shall signal by raised hand that the recount team has completed its work with that ballot box.

Return of Ballot Box

15. A person designated by the returning officer from among his or her staff shall bring the recount team another ballot box and shall take the recounted ballot box from the recount team and deliver it to the returning officer.

16. On receipt of a recounted ballot box, the returning officer shall ascertain whether it contains a disputed ballots envelope.

If There Are No Disputed Ballots

17. (1) If the ballot box does not contain a disputed ballots envelope, the returning officer shall provide the Recount Ballot Box Report and attached original statement of the vote to the judge.

(2) The judge shall review the report and statement and, if satisfied, shall initial the report to indicate his or her approval.

(3) If the judge approves the report, the returning officer shall cause the sealed envelopes to be placed in the large envelope, the large envelope to be sealed and placed in the ballot box, the ballot box to be sealed and placed in a secure location designated for ballot boxes for which the recount has been completed and the report and statement to be given to the person responsible for the preparation of the Master Recount Report.

(4) If the judge does not approve the report, the judge shall determine how to proceed with the ballot box.

If There Are Disputed Ballots

18. If the ballot box contains a disputed ballots envelope, the judge shall cause it to be dealt with in accordance with the following steps:

(a) photocopies of the front and back of each disputed ballot in the disputed ballots envelope shall be made — one for each party referred to in paragraphs 1(a) to (c), as the case may be, and one for the judge. Then the disputed ballot shall be returned to the disputed ballots envelope;

(b) after step (a) is completed for all the disputed ballots, the disputed ballots envelope shall be returned to the ballot box;

(c) the judge shall then set a time for the determination of the classification of the disputed ballots. Before the judge makes a determination with respect to a disputed ballot, each party may make submissions. Unless the judge decides otherwise, for the purpose of making submissions, any party opposing the original classification of the ballot will be considered an applicant, and all other parties will be considered respondents;

(d) the judge shall, in the Recount Ballot Box Report, indicate in writing the determination with respect to each disputed ballot, complete the judge's disposition portion of the report and initial in it the number of votes allocated to each candidate;

(e) the judge shall cause each ballot for which a determination of classification has been made to be placed into the appropriate envelope corresponding to the determination, and shall cause the envelopes to be sealed and placed in the large envelope and the large envelope to be sealed and placed in the ballot box;

(f) the judge shall cause the ballot box and its contents to be sealed and placed in a secure location designated for ballot boxes for which the recount has been completed; and

(g) the Recount Ballot Box Report, with the judge's disposition noted on it, and the original statement of the vote shall be given to the person responsible for the preparation of the Master Recount Report.

Master Recount Report and Certificate of Votes

19. A person designated by the judge shall transfer the final results shown on the Recount Ballot Box Reports onto the Master Recount Report.

20. Each of the parties referred to in paragraphs 1(a) to (c), as the case may be, and the returning officer shall have the opportunity, from time to time and at the conclusion of the preparation of the Master Recount Report, to inspect and compare the Recount Ballot Box Reports and the Master Recount Report, and to bring any error or discrepancy noted to the attention of the judge.

21. When the recount is complete, the parties referred to in paragraphs 1(a) to (c), as the case may be, may make their final submissions to the judge with respect to the accuracy of the Master Recount Report and the judge shall determine any issues arising from those submissions and ensure that the Master Recount Report is completed in accordance with any such determination.

22. The judge shall — on the basis of the Master Recount Report — without delay prepare a certificate in the prescribed form that sets out the number of votes cast for each candidate and deliver the original of the certificate to the returning officer and a copy of it to each of the parties referred to in paragraphs 1(a) to (c), as the case may be.

Other Powers of the Judge

23. The judge may alter these procedures during the recount after giving the parties referred to in paragraphs 1(a) to (c), as the case may be, and the returning officer the opportunity to make submissions.

24. Any matter not dealt with in these procedures, and any question arising as to the application of these procedures, is to be determined by the judge, including whether persons referred to in section 1 are permitted to communicate with the media.




Footnote 25 In interpreting or applying the Act, reference must be made to the current official texts published by the Queen’s Printer for Canada.