Manual on Judicial Recounts
3. Accepting and rejecting ballots6
Upon examination, the judge should reject a ballot that:
- was not supplied to the elector by the deputy returning officer
- The deputy returning officer should have initialled all regular ballots. If at the initial count the deputy returning officer discovers a ballot that is not initialled, and the deputy returning officer is satisfied that he or she issued the ballot, he or she is required to initial it. Therefore, all regular ballots counted as valid should have been initialled. 
- If a ballot that has not been initialled by the deputy returning officer is discovered during the recount:
- The judge may decide that an un-initialled ballot included with the ballots counted by the deputy returning officer was not initialled because the deputy returning officer made an error by failing to initial the ballot at the original count. [285, 304(3)]
- Alternatively, a judge may decide that an un-initialled ballot was included with the rejected ballots because the deputy returning officer did not believe that he or she issued the ballot. [284(1)(a), 285, 304(3)]
- The judge may summon the deputy returning officer or poll clerk to give evidence under oath. [304(5)]
- in the case where a special ballot was not supplied by the Chief Electoral Officer [269(1)(a), 304(3)]
- in the case where a special ballot cast at the office of the returning officer was not supplied for the election [279(1)(a), 304(3)]
- has been marked in a way that identifies the elector
- If the judge, in the course of examining the ballots, discovers a ballot or a special ballot that was marked in such a way that it could identify the elector, the judge shall reject the ballot.7 [269(1)(e), 279(1)(e), 284(1)(e), 304(3)]
- has been marked in such a way that more than one candidate
has been selected by the elector
- The judge shall reject a ballot that was marked in more than one circle to the right of the candidates' names.8 [284(1)(d), 304(3)]
- The judge shall reject a special ballot that is marked with the names of more than one candidate. [269(1)(d), 279(1)(d), 304(3)]
- has been marked for someone who is not a candidate
- Any votes given for a person other than a candidate are void and should therefore be rejected. [76, 269(1)(c), 279(1)(c), 284(1)(c), 304(3)]
- has not been marked in a circle to the right of the candidates'
names, or in the case of a special ballot, has not been marked
- The judge shall reject a ballot where the voter did not make a mark in one of the circles to the right of the candidates' names. [284(1)(b), 304(3)]
- The judge shall reject a special ballot where the voter did not make a mark. [269(1)(b), 279(1)(b), 304(3)]
- There is divided judicial opinion whether a ballot should be rejected where the elector has not properly marked the ballot.9
3.1.2 Insufficient grounds to reject ballots
A ballot should not be rejected by a judge simply because it was:
- marked by the deputy returning officer in a manner other
than as set out in the Act [284(2)]
- Ballots that were objected to during the initial count have been marked by the deputy returning officer with a number that coincides with a number listed in the poll book. [286(1)] The judge may not examine the poll book. [304(2)]
- The judge may summon the deputy returning officer to give evidence under oath. [304(5)]
- marked with a symbol other than a cross
- An elector may mark a ballot with a cross or other mark in the circular space opposite the name of the candidate of his or her choice, provided that the mark cannot be used to identify the elector. [151(1)(b), 279(1)(e)]
- marked with a writing instrument other than a black lead pencil [304(3), DRO Manual]
- marked where the mark extends outside the circle to the right of the candidate's name [304(3), DRO Manual
- a ballot where the counterfoil was not removed by the deputy
- The deputy returning officer is required to remove a counterfoil during the counting and examination of the ballots if the deputy returning officer did not remove the counterfoil initially. [284(3)]
- marked in a way that the circle is completely filled11[304(3), DRO Manual], or
- in the case of a special ballot, if the elector wrote the name of a candidate incorrectly, or if the elector wrote the candidate's political affiliation in addition to the name of the candidate, if the ballot clearly indicates the elector's intent [269(2), 279(2), 279(3), 304(3)]
Where a judge decides to conduct the recount by counting all of the ballots returned by deputy returning officers or by the Chief Electoral Officer, the judge's recount may also include a review of the envelopes set aside unopened by the special ballot officers or the deputy returning officers under the Special Voting Rules. [304(3)]
In deciding whether to accept envelopes previously set aside, a judge must apply the same requirements as those that apply to the special ballot officers and the deputy returning officers under the Special Voting Rules. [304(3)(a)]
A judge shall set aside, unopened, an outer envelope:
- that has not been signed by the elector
- This ground does not apply if the elector was assisted in marking the ballot paper by an election officer and there is a note to that effect on the back of the outer envelope. [267(1)(b), 277(1)(b)]
- where the correct electoral district of the elector cannot be ascertained [267(1)(c)]
- that either has been received by the returning officer after the close of polls in that electoral district or has been received in Ottawa by the special voting rules administrator after 6:00 p.m. on polling day [277(1)(d), 267(1)(d)]
- of an elector who has received more than one ballot from a returning officer [277(1)(c)]
While a judge at a recount of the ballots has the power to open the envelopes containing outer envelopes that have been set aside unopened, he or she is not under any obligation to do so or to examine the outer envelopes contained therein. [304(2)]
A spoiled ballot is one that has been handled by an elector in such a manner that it is ruined and cannot be used, or one that is found by the deputy returning officer to be soiled or improperly printed. The spoiled ballot is not placed in the ballot box, but rather is marked as spoiled by the deputy returning officer and set aside. The elector is given another ballot. [2(1), 152]
While a judge at a recount of the ballots has the power to open the envelopes containing spoiled ballots, he or she is not under any obligation to do so or to examine the spoiled ballots contained therein. [304(2)]
The provisions of the Act surrounding spoiled ballots permits a person who has spoiled his ballot to receive no more than one other ballot. [152(2)]
After the elector returns a spoiled ballot to the deputy returning officer, the deputy returning officer marks the ballot as spoiled and sets it aside. [152(1)]
At the close of polls, spoiled ballots are not counted by the deputy returning officer towards the votes received by any candidate. [283(3)]
There is a presumption that spoiled ballots will not be counted at a judicial recount because if a spoiled ballot were subsequently accepted as a valid ballot at a recount, the probable result would be that two ballots cast by a single elector would both be counted as valid votes.
While a judge at a recount of the ballots has the power to open the envelopes containing unused ballots, he or she is not under any obligation to do so or to examine the unused ballots contained therein. [304(2)]
The sum of the valid ballots cast and the rejected ballots for a polling station should equal the number of electors who voted at that polling station.
The sum of the numbers of valid ballots cast, the rejected ballots, the spoiled ballots and the unused ballots for a polling station should equal the number of ballots received from the returning officer for that polling station.
6 The Supreme Court of Canada discussed the right to vote enshrined in section 3 of the Charter, in the context of the 1992 referendum, in Haig v. Canada,  2 S.C.R. 995.
7 The Ontario Court of Appeal considered municipal electoral legislation with similar statutory language to that of the Canada Elections Act, and held that the elector must be identifiable on a balance of probabilities in order for this to be a valid reason for rejecting a ballot (O'Donohue v. Silva (1995), 27 O.R. (3d) 162 (C.A.), aff'g (1995), 28 M.P.L.R. (2d) 9 (Gen.Div.)). However, the Alberta Court of Appeal in Lukaszuk v. Kibermanis,  A.J. No. 167 (C.A.) (QL) characterizes Alberta's approach to this question as "less rigid" than Ontario: under Alberta legislation, the mark must enable the voter to be "readily identified," which means that the voter must "on an objective basis, be easily identifiable on the face of the ballot by those reading the ballot without reference to external sources of information, including forensic testing or handwriting analysis" (at para. 33).
The Ontario Court of Appeal in O'Donohue referred to the decision of Lucas-Astley v. Barrie,  O.J. No. 255 (Gen.Div.) (QL), which held that the intention of the voter must be considered when examining the mark made on the ballot. A voter's intention to identify himself or herself remains part of the overall consideration as to whether the ballot should be rejected. It could not have been the intention of the legislature to provide that any mark, tear or writing will vitiate a ballot, however inadvertent or accidental that mark, tear or writing may be.
The Newfoundland Supreme Court observed that the size of the community is one factor to be taken into consideration when determining whether a distinctive mark on a ballot could reasonably cause the elector to be identified. (Re Ford,  N.J. No. 203 (S.C.T.D.) (QL)).
For other cases on whether a mark may identify an elector, see Re Fitzgerald,  N.J. No. 268 (S.C.T.D.) (QL); and Re Hewlett, below.
8 The Newfoundland Supreme Court held that where an elector placed a mark in two candidates' boxes, but it was obvious that the elector intended to vote for one of the candidates only, this ballot is valid and should be counted. The Court considered three examples. First, an elector had marked an "X" for a candidate, then obliterated it and voted for a second candidate. Second, an elector made a mark in the box for one candidate, but stopped after making one diagonal line, and subsequently marked an "X" for another candidate. In these two cases, the Court found the ballots valid. However, in the third example, one "X" was found in one candidate's box, and two Xs were found in another. The ballot was rejected because it was impossible to determine the intention of the voter. (Re Hewlett,  N.J. No. 125).
The Ontario Court (General Division) in O'Donohue held that initialling a change of vote by scratching out one candidate, voting for another, and initialling the change does not constitute an intention by the voter to identify himself. On appeal, the Ontario Court of Appeal found that "in deciding whether a given mark amounts to the "casting" of a vote, the voter's intention, as manifested by the nature of the mark is a relevant consideration to be taken into account in determining whether the vote must be rejected [because the voter has placed marks next to the names of more than one candidate.]" As it was clear that the voter meant to scratch out one mark and to cast a vote for only one candidate, this ballot was acceptable. (O'Donohue v. Silva (1995), 27 O.R. (3d) 162 (C.A.), aff'g (1995), 28 M.P.L.R. (2d) 9 (Gen.Div.)).
9 The Ontario Court of Appeal has strictly interpreted the requirement that the voter place a mark on the ballot nowhere else than in the circle or circular space to the right of the candidates' names. Where a mark is not placed correctly, even where "it is abundantly clear for whom the electors intended to vote," the ballot must be rejected. (O'Donohue v. Silva (1995), 27 O.R. (3d) 162 (C.A.), aff'g (1995), 28 M.P.L.R. (2d) 9 (Gen.Div.)).
The Northwest Territories Court of Appeal held, in Re Firth and Nickerson (1980), 111 D.L.R. (3d) 525, that the deputy returning officer must reject ballots not marked in the circles to the right of the candidates' names. The Court stated that Parliament had clearly expressed its will that the deputy returning officer "shall" reject ballots improperly marked in this way.
The Ontario Divisional Court reviewed the provisions of the Ontario Municipal Elections Act with respect to ballots marked incorrectly. The Court noted the absence of any provision compelling the rejection of ballots not marked as directed, and held that the correct marking of the ballot set out in the law must be taken as a direction only. Where the intention of the voter is clear, that intention is paramount and should not be frustrated. Marks made outside of the space provided, but in a manner that clearly indicated the voter's intent, must be counted. This case can be distinguished from Re Firth because, unlike the Canada Elections Act, the Ontario statute lacked a provision requiring a ballot to be rejected if not marked as required. (Re Dingley and McLean (1973), 34 D.L.R. (3d) 38).
However, the Ontario Municipal Elections Act was reconsidered on this point by the Ontario Court (Provincial Division) in Devine v. Scarborough (City),  O.J. No. 511 (QL). In the period between Dingley and Devine, the Ontario Municipal Elections Act had been amended so that the deputy returning officer was to "reject any vote that is not marked within the circle or circular space to the right of the name of a candidate." The Court held that the intent of the legislation was that only votes marked within the spaces provided to the right of the candidates' names were valid votes. A vote marked outside of the designated voting space was found not to be a valid vote.
Circling the name on the ballot has been held to be a valid vote by the Newfoundland Supreme Court, Trial Division in Re: Ford,  N.J. No. 203 (QL). The circle clearly indicated the voter's intent and could not serve as a way to identify the voter in question. However, the Newfoundland Elections Act expressly provided that ballots could be marked outside of the circle to the right of the candidate's name.
In Re: Controverted Elections Act (N.S.),  N.S.J. No. 33 (QL), some voters who cast their votes at a special poll marked their ballots outside of the circle to the right of the candidate's name. Despite clear and unambiguous language in the provincial statute, the Nova Scotia Supreme Court, Trial Division held that as the electors' voting intentions were clear, and as the form of ballot used at the special poll should have been the same as that used for an ordinary poll, the votes of these electors should be counted.
In Massana c. Lucas,  J.Q. No. 6020 (QL), the Quebec Superior Court, Civil Division held that the fact that the ballots did not conform to the regulations did not cause any prejudice, as voters for different candidates failed to mark their ballots correctly. As long as the clear intention of the voter was shown, the court counted the ballot. This decision disregarded the wording of Quebec's municipal electoral legislation, which required that ballots marked incorrectly must be rejected.
10 For a discussion of the validity of ballots where counterfoils were not removed, in the context of Quebec's provincial election legislation, see Lavalée (Re),  A.Q. No. 819 (C.A.) (QL).
11 In interpreting Ontario's Municipal Elections Act, 1972, the Ontario Divisional Court held that, failing clear legislative intent to the contrary, the intention of the voter is paramount and should not be frustrated because a box on the ballot was shaded in rather than marked with a cross. (Re Dingley and McLean (1973), 34 D.L.R. (3d) 38).