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Judicial Recount handbook

2. Judicial Recounts – Preliminary Explanations

2.1 How a Judicial Recount Differs from the First Counting of Votes

After the polls close on election night, the ballots for each poll in each electoral district are counted by the deputy returning officer in the presence of the poll clerk and other persons who are authorized by the Act to be present. Each deputy returning officer prepares a Statement of the Vote after the counting of ballots. Special ballots are counted at the office of the returning officer in each electoral district by teams of election officers and by special ballot officers at Elections Canada headquarters in Ottawa. A summary of counting procedures at the close of polling day is outlined in Appendix B.

A judicial recount is a formal means of verifying the count of the votes cast for an electoral district. It is presided over by a judge of a superior court in the electoral district where the election results are validated. [2(1), 299(1)] The recount may be conducted by adding the number of votes reported in the Statements of the Vote or by counting the ballots. [304(1), 6 of Schedule 4] As mentioned in Section 1.1 above, there are two types of recounts – automatic and by request of an elector.

2.2 Automatic Judicial Recount After a Close Result

One type of judicial recount occurs automatically upon a close result.

2.2.1 Ground for Automatic Judicial Recount

A judicial recount must take place if the difference between the number of votes cast for the candidate with the most votes and the number of votes cast for any other candidate is less than one one-thousandth (1/1000) of the validFootnote 2 votes cast. [300(1)]

2.2.2 Returning Officer Request and Deadline

Where the margin of votes between candidates triggers an automatic recount, the returning officer must make a request for a judicial recount within four days after the results are validated. [300(1)] The request is made to a judge who sits in the electoral district where the results are validated. [2(1), 299(1)] See Section 2.4.2.5 below for a list of the courts whose judges have jurisdiction to conduct a recount.

The Act does not set out the process to request a judicial recount as this will vary from jurisdiction to jurisdiction. The application process set out in the rules of the applicable court is used.

2.2.3 Notices

The returning officer gives each candidate or his or her official agent written notice of the request for an automatic recount. [300(2)] The Notice of an Application by the Returning Officer for a Judicial Recount form reproduced in Appendix E (Form 1) of this handbook may be used for this purpose.

While giving notice of the time and place of the recount is not a statutory requirement for automatic recounts, nothing in the Act prohibits a judge from giving notice to candidates of the time and place fixed for an automatic recount. A form of written notice that the judge may use, the Notice of a Judicial Recount, is reproduced in Appendix E (Form 2) of this handbook.

2.2.4 Deadline to Conduct the Judicial Recount

The recount must commence within four days after the judge receives the application for a recount. [300(3)] Once the recount has begun, the judge must, as far as practicable, proceed continuously, except for necessary breaks. [305]

Deadlines in Part 14 of the Act are guided by reference to the Interpretation Act, although in at least one case this was adjusted on consent of the participants.Footnote 3 The Interpretation Act provides that where the time limited for the doing of a thing expires or falls on a holiday, it may be done on the day next following that is not a holiday and that where anything is to be done within a time after a specified day, the time does not include that day.Footnote 4 The Interpretation Act applies to every enactment unless a contrary intention appears. The Interpretation Act therefore requires that weekends and other holidays should be counted when calculating both the period within which an application for recount should be brought and the period within which a judge should start the recount following receipt of the application. However, should one of these periods expire on a holiday, that period would be extended to the end of the next day that is not a holiday.Footnote 5

The regime is therefore more firm about the date for the start of the recount than it is about adjustments as directed by the judge after it has formally begun.

2.3 Judicial Recount on Application by an Elector

2.3.1 Grounds upon Which an Elector May Apply for a Recount

Upon application by an elector, a judge may conduct a judicial recount only if there is credible affidavit evidence of one of the following:

2.3.2 Application and Deadline

An elector must make the application within four days of the returning officer issuing a certificate setting out the number of votes cast for each candidate and after notifying the returning officer in writing. [301(1)]

The Act does not set out the process to apply for a judicial recount as this will vary from jurisdiction to jurisdiction. The application process set out in the rules of the applicable court is used.

2.3.3 Engaging Counsel

An elector may wish to consult his or her own legal counsel before making an application for a judicial recount. The application must conform to the rules of the competent court in the jurisdiction where the election occurred in addition to complying with the provisions of the Act.

2.3.4 Multiple Judicial Recount Requests

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

2.3.5 Security for Costs

Where an elector applies for a recount, the applicant must deposit with the clerk or prothonotary of the court the sum of $250 as security for costs of the candidate who obtained the largest number of votes. [301(3)] Cost consequences are discussed in Section 7 of this handbook.

2.3.6 Notices

The judge shall notify each candidate or his or her official agent in writing of the time and place fixed for the recount. The Notice of a Judicial Recount form set out in Appendix E (Form 2) of this handbook may be used by the judge for this purpose. The judge may decide that service of the notice will be substitutional, by mail or posting or in any other manner. [301(5)] The form should be adjusted accordingly.

2.3.7 Deadline to Conduct Judicial Recount

If the application for a recount is granted, the recount must commence within four days after the judge receives the application. [301(4)]

See the explanation in Section 2.2.4 above about the interpretation of deadlines in Part 14 of the Act and the application of the Interpretation Act.

2.3.8 Termination of the Recount

The judge may terminate the recount at any time at the written request of the person who applied for the recount. [307]

Attendees at a Judicial Recount and Their Roles

2.4.1 Attendees at the Recount

The Act contains a list of persons who are legally entitled to attend the recount. Only the following persons may be present during the recount:

2.4.2 Roles of Attendees at the Recount

2.4.2.1 The Returning Officer

Note: The role of the returning officer is further outlined in Appendix C, which contains the Checklist for Returning Officers.

The returning officer attends the recount and brings the relevant materials, including:

Arrangements will need to be made for secure transit of these ballots. The returning officer may be asked by the judge to assist with finding a location to conduct the recount and arranging for security, such as a security guard.

The role of a returning officer in the context of a judicial recount − once it has begun − is the following:

It is not the responsibility of a returning officer to count any ballots or determine whether a particular ballot should be accepted or rejected. This is the ultimate responsibility of the recount team and judge. A returning officer should not be involved at all in the representations made by candidates or their legal counsel concerning the validity of a ballot.

The judge may ask for the opinion of a returning officer on facts within the personal knowledge of that returning officer. The judge may ask a returning officer for the names of persons who should be summoned to give evidence to the judge in order to clarify any facts at issue at the judicial recount.

The returning officer should not speak with the media, but should refer the media to Elections Canada at 1-800-463-6868.

2.4.2.2 The Recount Teams

The judge shall, with the Chief Electoral Officer's approval, establish an appropriate number of recount teams, each consisting of:

The members of the recount team do not have the status of election officer, although it is often the case that persons who were appointed as election officers for the election are appointed to a recount team. The handler and recorder take an oath or solemnly affirm that they will carry out their functions with complete impartiality and according to the law. A copy of the Appointment and Oath form is included in this handbook in Appendix E (Form 8).

Each team is to be assigned a sequential team number, beginning with 1. [3 of Schedule 4] Typically, recounts consist of approximately 15 to 20 teams.

During the recount, each recount team is assigned to a table and shall remain at its table except during breaks, as directed by the judge. If practical, breaks shall commence only after the recount of a particular ballot box has been completed. [4 of Schedule 4]

The functions of a recount team are to:

See Section 5 below for more detailed guidance related to the examination of ballots and the grounds for rejecting ballots.

2.4.2.3 The Candidate, His or Her Representatives and His or Her Legal Counsel

Each candidate and up to two of his or her representatives may attend at a recount. [Paragraph 1(b) of Schedule 4] These representatives do not form part of the recount team and are different from the representative chosen by each candidate to form part of the recount team. [3 of Schedule 4]

2.4.2.4 The Legal Counsel for the Chief Electoral Officer

The role of the legal counsel for the Chief Electoral Officer is limited to providing the judge with technical and legal information at the request of the judge. The legal counsel may also assist with the duties of the returning officer.

2.4.2.5 The Judge
Jurisdiction

Judges of the following courts are authorized by the Act to conduct recounts:

as long as the judge sits in the electoral district where the results are validated. [2(1), 299(1)]

A judge must be acting in a judicial capacity within the electoral district where the results are validated in order to conduct a recount of the votes cast for that electoral district. A judge authorized to act for a judicial recount may act, to the extent authorized, within or outside his or her judicial district. [299]

Summoning Witnesses

Missing Ballot Box or Statement of the Vote

A judge charged with conducting a recount has all the powers of a returning officer with regard to ordering the attendance and examination of witnesses, including ordering that witnesses bring with them any necessary documents in order to arrive at the facts with respect to a missing ballot box or Statement of the Vote. [304(4), 296(2)(b)]

The Act creates an offence for any person who fails to appear after being summoned. If the person is convicted, the penalty is a fine of not more than $5,000, imprisonment for a term of not more than six months or both. [304(4), 493, 500(2)]

In the event that individuals are summoned to give evidence in these circumstances, the judge shall give notice to the candidates of the date and time fixed for the appearance of the individuals in question. [296(3), 304(4)]

Summoning a Deputy Returning Officer or Poll Clerk

A judge conducting a judicial recount may summon any deputy returning officer or poll clerk as a witness and can 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. [304(5)]

Where a recount of all ballots is required, subsection 304(2) of the Act prohibits the judge from referring to any other election documents besides ballots in the course of the judicial recount. Since the judge does not have access to the poll book, or any other election documents other than the ballots, the judge may require that the deputy returning officer appear to confirm that he or she initialled the counterfoil or explain why a ballot was counted for a particular candidate, rejected or spoiled if the reason is not readily apparent from the documents at hand. [304(1), (2)]Footnote 6

Judge May Alter Procedures

The judge may alter the procedures during the recount after giving the parties (candidates, their representatives and their legal counsel) and the returning officer the opportunity to make submissions. [23 of Schedule 4]

Matters Not Dealt with Under Schedule 4

Any matter not dealt with in the procedures under Schedule 4 of the Act and any question arising as to the application of these procedures is to be determined by the judge, including whether persons present at the recount are permitted to communicate with the media. [24 of Schedule 4]

2.4.2.6 Clerical Assistance for the Recount

Subject to the approval of the Chief Electoral Officer, a judge who is called upon to conduct a judicial recount may retain the services of clerical assistants to assist in the performance of his or her duties under the Act. [304(6)] The returning officer generally assists the judge with the hiring of such assistants.

Individuals retained by a judge to assist with a recount are paid for their attendance and services, as certified by the judge, on the basis set out in the Federal Elections Fees Tariff. [542(1), Tariff Item 52]

2.4.2.7 Other Individuals (Such as Media Representatives)

No persons other than those mentioned above may attend the recount unless they are granted permission to attend by the judge. [1(e) of Schedule 4] Individuals granted permission to attend the recount, other than the ones listed above, 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. [2 of Schedule 4]

The judge may be faced with requests from the media to attend the recount. Requests are determined by the judge. [24 of Schedule 4]

In some previous recounts, judges did not allow access to the media inside the recount room. However, the media were allowed to stay outside, and the judges would address them.Footnote 7 The recount judge might choose to meet media representatives before the recount to explain the process.

In other instances, judges allowed the media inside the recount room under certain conditions.

2.5 Logistics Related to the Judicial Recount

2.5.1 Choosing the Location of the Recount

The Act does not specify the location of the recount. The recount may be held at a courthouse, at the returning office or at another location where the integrity and security of the ballots and the efficiency of the recount can be assured. Holding the recount at the returning office or close to that office is suggested as often as possible as it is more efficient and facilitates arrangements for the integrity and security of the ballots.

Holding the recount at the returning office allows returning office staff to promptly transfer the results of the recount from the Recount Ballot Box Reports to the Event Results System (ERS). The ERS is an electronic application that is used at the returning office. Once the recount results are imputed for each polling division, the ERS will generate a poll-by-poll report, which will constitute the Master Recount Report – a copy of which is included in Appendix E (Form 4) of this handbook. If the recount is conducted at a place other than the returning office (e.g. at a courthouse), it may be necessary to transport the Recount Ballot Box Reports to and from the returning office.

If the returning officer is requested to find a location or venue other than the returning office or courthouse for the conduct of the recount, or if it appears that due to space requirements or unavailability of other locations, leased premises will be needed, he or she should contact Elections Canada for further direction.

If the recount is held at a location other than where the returning officer has stored the ballot boxes, the ballot boxes will need to be moved to that location. The returning officer typically makes arrangements for the transportation of the ballot boxes as well as the security of the ballot boxes while in transit and while at the location of the recount.

The conduct of the recount may require high volumes of photocopying (of disputed ballots and various forms). When evaluating space requirements, returning officers should give special consideration to the capacity and reliability of photocopying resources that may be needed and the layout of the photocopying area. Problems with traffic flow or photocopying capacity could slow down the recount.

2.5.2 Preliminary Meeting with Parties to Discuss Procedural Matters

The judge governs the conduct of the recount. At his or her discretion, the judge may wish to chair a preliminary meeting in advance of the start of the recount, with the returning officer, the candidates, their legal representatives and legal counsel for Elections Canada in attendance, to discuss procedural and logistical matters. This preliminary meeting is often held on the same day as the hearing on the application for judicial recount or shortly afterwards.

2.5.3 Organizing Recount Teams

In selecting and training the recount teams, it may be useful for the returning officer to have on hand a list of persons experienced in counting ballots. Such a list is also useful in the event that some persons initially selected withdraw before the recount starts. The returning officer could also contact the candidates to obtain a list of names of persons who may be available to act at a judicial recount as the handler and the recorder. The returning officer should make it clear that the judge will determine, pursuant to the Act, how the recount will proceed, and that these individuals may not be required. Once it is determined that they will be required, the returning officer must appoint the necessary number of handlers and recorders.

Once the recount teams have been selected, it will also be useful to identify which ballot boxes cannot be assigned to specific recount teams. For example, a ballot box may not be assigned to a recount team if its handler or recorder was, in the election, assigned to the advance polling station or polling station from which the ballot box originated.

2.6 How the Recount Is Conducted

The Act provides that a judge shall conduct the recount in one of the following manners:

The manner of the recount should be determined by the judge based on the application, the affidavit evidence and the submissions of the parties.

If the second or third option is initially chosen, at any time during the recount the candidates can consent to having the judge conduct the recount by adding the number of votes reported in the Statements of the Vote instead of counting the ballots. [6 of Schedule 4]

2.6.1 Adding the Number of Votes Reported in the Statements of the Vote

A Statement of the Vote is completed for each polling division within an electoral district, setting out how many votes were cast for each candidate and how many votes were rejected, spoiled and unused. [287(1)] The Statement of the Vote form is reproduced in Appendix D (Form 4) of this handbook.

If the judge decides to add the number of votes reported in the Statements of the Vote, the judge will not count each ballot. Instead, the recount is completed by adding the number of votes recorded in the Statements of the Vote. [304(1)] This type of recount may take place where it is believed (or alleged) that the returning officer has made an arithmetic error in adding the number of votes in the Statements of the Vote.

The sum of the valid ballots cast and the rejected ballots for a polling division should equal the number of electors who voted at that polling division.

The sum of the valid ballots cast, the rejected ballots, the spoiled ballots and the unused ballots for a polling division should equal the number of ballots received from the returning officer for that polling division.

2.6.2 Counting Valid Ballots

In the case of a recount by counting the valid ballots, each ballot is counted again according to the procedure set out in Schedule 4. [304(3)]

2.6.3 Counting All of the Ballots Returned by the Deputy Returning Officers or by the Chief Electoral Officer

In the case of a recount by counting all of the ballots returned by the deputy returning officers or by the Chief Electoral Officer, the judge may open the large sealed envelopes that contain the used and counted, unused, rejected and spoiled ballots. [304(2)] These are not necessarily all opened, although they may be. Each examined ballot is counted again according to the procedure set out in Schedule 4. [304(3)]

The materials for the recount include the ballots and any outer envelopes set aside unopened under the Special Voting Rules. [300(4), 304(1), 8 of Schedule 4] The "poll bag," or envelope containing the spoiled special ballot papers, should also contain envelopes set aside unopened under the Special Voting Rules. A recount of all ballots includes these ballots, but this does not mean that the set-aside outer envelopes (never previously opened) are necessarily opened at the recount. The judge would not have access to applications for special ballots, a fact that would limit the scope for re-evaluating, during the recount, the information on an outer envelope that was set aside. Dealing with special ballots at a recount is described further in Section 5.2 below.

During the recount, apart from the envelopes and ballots listed above, the judge may not refer to any of the other election documents, nor may he or she open any other envelopes that appear to contain other election materials. [304(2)]

2.6.4 Requirement for the Recount to Proceed Continuously

As far as it is practicable, the judge shall proceed continuously with the recount, except for necessary breaks, between the hours of 9:00 a.m. and 6:00 p.m. The recount will take place between those hours only unless the judge orders otherwise. The count will continue until it is completed. [305] Each recount team shall remain at its table except during breaks, as directed by the judge. These breaks should commence only after the recount of a particular ballot box has been completed. [4 of Schedule 4]

There is no provision in the Act, or in the Interpretation Act, that suggests that the count should be suspended for weekends or holidays.

2.6.5 Security of the Ballots During a Break in the Count

During the overnight break in the count, between 6:00 p.m. and 9:00 a.m., and during other necessary breaks during the day, the judge, or any other person who has possession of the ballots and other election documents, shall keep them sealed. The judge shall sign the seal. Any other person in attendance may also sign the seal. [306(1)]

The judge shall personally supervise the sealing of documents at a recount and take all of the necessary precautions for their security. [306(2)] In practical terms, the returning officer, with the approval of the judge, typically arranges for any necessary security measures, such as a security guard or alarm system.

2.7 Information About Ballot Boxes and Ballots

2.7.1 Content of the Ballot Boxes

The ballot boxes contain, in envelopes, what is necessary for the judicial recount: the ballots cast, the unused ballots, the spoiled ballots and the rejected ballots. A spoiled ballot is one that is inadvertently handled by an elector in such a manner that it cannot be used (e.g. it is soiled or wrongly marked by accident, and the elector asks for a new ballot). A spoiled ballot is not put in the ballot box. A spoiled ballot is different from a rejected ballot. A ballot can be rejected (i.e. not counted for any candidate) by the deputy returning officer after the elector puts the ballot in the ballot box, and once the votes are counted, for reasons stated in the Act and described further below (e.g. the elector could be identified, the elector did not select any of the candidates, the elector selected more than one candidate, etc.). [152, 284, 285]

Ballot box contents also include the Statements of the Vote as well as the ballots cast and the Statements of the Vote made in accordance with the Special Voting Rules.Footnote 9 [300(4), 301(4)] An illustration of the Statement of the Vote form is included in Appendix D (Form 4).

The ballot box should also contain a copy of the poll book, the document envelope, the seal control sheet and other election materials.

If a recount of all of the ballots is taking place, the judge may refer only to 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. [304(2)]

2.7.2 Regular Ballots

The regular ballot is used at polling stations and advance polling stations. It sets out the names of the candidates in an electoral district in the form reproduced below and in Appendix D (Form 1) of this handbook. [116(1), Form 3 of Schedule 1]

Regular Ballot
Text Description of "Regular Ballots"

2.7.2.1 Spoiled Ballots

A spoiled ballot is one that, during the voting process, is inadvertently handled by an elector in such a manner that it cannot be used (e.g. it is soiled or wrongly marked by accident, and the elector asks for a new ballot). The spoiled ballot is not placed in the ballot box and does not form part of the count. It is marked as spoiled by the deputy returning officer and set aside. The deputy returning officer gives the elector another ballot. [152]

2.7.2.2 Unused Ballots

An unused ballot is a ballot not given to an elector during the election process.

2.7.2.3 Rejected Ballots

During counting, a regular ballot may be rejected, and not counted for any candidate, according to specific criteria in the Act, described further below (e.g. the elector could be identified, the elector did not select any of the candidates, the elector selected more than one candidate, etc.). Rejected ballots are placed in a separate envelope, and the number of rejected ballots is entered in the Statement of the Vote and forms part of the count of total ballots cast. [152, 284, 285, 287(1), 288(2)]

2.7.3 Special Ballots

Special ballots are used under the Special Voting Rules of the Act for votes cast by:

A special ballot simply provides a blank space for the elector to write in the name of a candidate, in the form reproduced below and in Appendix D (Form 2) of this handbook. [186, Form 4 of Schedule 1] The ballot is placed in a double envelope: the special ballot is placed in a sealed inner envelope, which is itself placed in a larger, sealed outer envelope. The outer envelope identifies the elector.

Special Ballot
Text Description of "Special Ballot"

Using a special ballot, an elector residing in Canada (fourth bullet point above) can vote by mail or in person at the returning office. The special ballots for each electoral district are therefore received both by the local returning officer and at Elections Canada headquarters.

The counting process for special ballots is outlined in Appendix B of this handbook.

There may be persons who vote under the Special Voting Rules using a regular ballot rather than a special ballot. If an elector applies under the Special Voting Rules to vote in person at the office of the returning officer after regular ballots for that electoral district have been printed, that elector shall be given a regular ballot and shall mark the ballot accordingly. The regular ballot will be enclosed in a double envelope in the same manner as a special ballot. [241] The elector has still voted under the Special Voting Rules.

2.7.3.1 Rejected and Spoiled Special Ballots

Special ballots may be spoiled, set aside and deemed spoiled; merely set aside; or rejected.

It is possible for an elector to spoil a special ballot by inadvertently handling it in such a manner that it cannot be used; he or she then receives another ballot. [242]

The Act also includes rules for setting aside a special ballot and deeming it to be spoiled based on an examination of the outer envelope during the initial counting. For instance, this may occur for special ballots counted at Elections Canada headquarters if: (1) the special ballot officers ascertain that the information concerning the elector as described on the outer envelope does not correspond with the information on the elector's application for registration and special ballot, (2) the outer envelope does not bear the elector's signature, (3) the outer envelope was received after the statutory deadline, etc. In these cases, the ballot itself would not have been examined. The outer envelope would have been set aside and marked with the reason that this was done. Outer envelopes counted at the returning office may be set aside for similar reasons and, although the ballots contained in them are not expressly deemed under the Act to be spoiled, such ballots will not be counted for any particular candidate. [267, 269, 277, 279]

If the special ballot officers in Ottawa ascertain that an elector has voted more than once, they shall lay the outer envelopes that relate to the elector aside, unopened. Although the ballots contained in them are not deemed under the Act to be spoiled, such ballots will not be counted for any particular candidate. [267(2) and (3)(c)]

For ballots whose envelopes were opened, the special ballot itself may have been rejected during counting according to criteria in the Act (e.g. unmarked, marked with a name other than the name of a candidate, etc.). [269, 279]

2.8 Handling Ballot Boxes; Assigning Ballot Boxes and Special Ballots

This procedure applies when the judge has decided either to count valid ballots or to count all of the ballots returned by the deputy returning officers or by the Chief Electoral Officer.

As a preliminary step, a recount kit will be sent to the returning officer by Elections Canada headquarters before the official commencement date of the recount. Such kit will contain, among other materials, envelopes that the recount team will need to sort and place the ballots cast for each candidate and envelopes for rejected and disputed ballots. The envelopes that come out of the ballot box, once unsealed and opened for recounting purposes, are usually not in good enough condition to be reused. When ballots are recounted, these ballots have to be placed in new envelopes. The new envelopes themselves are then sealed and signed (or initialled) by the handler, the recorder and the candidates or their representatives. Each of these envelopes (i.e. envelopes containing ballots cast for each candidate, the rejected ballots envelope or the disputed ballots envelope) will need to be labelled by staff in the returning office with the name of the electoral district, the polling division number and the title of the envelope.

2.8.1 Handling Ballot Boxes

Only the handler or the recorder of a recount team shall handle the 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. [9 of Schedule 4]

2.8.2 Assignment of Regular Ballot Boxes

The returning officer will assign regular ballot boxes to the 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. [7(1) of Schedule 4] Each recount team should be provided with a Recount Ballot Box Report form (see Appendix E, Form 3), which is to be completed for each recounted ballot box.

Any handler or recorder who was a deputy returning officer or poll clerk in the election must not recount a ballot box from a poll to which he or she was assigned for the election. [7(2) of Schedule 4]

2.8.3 Assignment of Special Ballots Cast Under the Special Voting Rules

Special ballot envelopes must be assigned to recount teams 1 to 3. The process set out for regular ballot boxes [10 to 18 of Schedule 4] must be followed, with necessary modifications regarding envelopes containing these special ballots. No other ballots or ballot boxes shall be assigned to these teams until the recount of special ballots has been completed. [8 of Schedule 4] Recounting special ballots and suggested modifications from the regular process are dealt with in Section 5.2 below.




Footnote 2 Valid votes consist of the votes cast for candidates and the rejected ballots.

Footnote 3 Interpretation Act, R.S.C. 1985, c. I-21. In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914, the first day after the filing of the application fell on a Saturday. The four-day period after which the recount could have been conducted may well have included the weekend. However, counsel agreed that a few extra days of preparation would be time well spent. Consent was received from all that the date would be extended beyond the statutory provision.

Footnote 4 Sections 26 and 27 of the Interpretation Act.

Footnote 5 The Interpretation Act defines "holiday" at section 35 to include a non-juridical day in the relevant province (i.e. Saturday) and a public or civic holiday in the province or municipality.

Footnote 6 The Act does not contain a similar summons power in relation to special ballots counted at Elections Canada headquarters; these are not counted by deputy returning officers. However, section 24 of Schedule 4 may assist.

Footnote 7 See Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914.

Footnote 8 See Judicial Recount Arising out of the 41st General Election in the Electoral District of Etobicoke-Centre (Re), 2011 CanLII 36068 (ON SC) and In the Matter of a Judicial Recount Arising out of the 40th General Election in the Electoral District of Kitchener-Waterloo Held on October 14, 2008 (Re), 2008 CanLII 64382 (ON SC): emphasis put on principles of open proceedings and public scrutiny of judicial decisions.

Footnote 9 The Ontario High Court in Re Bevilacqua (1988), 56 D.L.R. (4th) 698 (Ont.H.Ct.) held that the envelopes do not have to be properly sealed in order for the ballots therein to be counted during a judicial recount and that holding otherwise would deprive eligible electors of their franchise despite their lawful participation in the election. Voters should not be punished because of the errors of election officials.