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Judicial Recount handbook

5. Examining Ballots and Grounds to Reject Ballots

5.1 Examining Regular Ballots

5.1.1 Grounds upon Which to Accept Regular Ballots

Upon examination and according to the criteria referred to in the Act, the recount team should accept a ballot when:

5.1.2 Grounds upon Which to Reject Regular Ballots

Upon examination and according to the criteria referred to in the Act,Footnote 13 the recount team must reject a ballot on the following grounds:

5.1.3 Insufficient Grounds to Reject Regular Ballots

Upon examination and according to the criteria referred to in the Act, the recount team should not reject a ballot in the following cases:

Apart from the statutory criteria, if a ballot is otherwise acceptable, it should not be rejected by reason only that:

5.2 Examining Special BallotsFootnote 21

Item 8 of Schedule 4 requires that the process at a recount for examining regular ballots and resolving disputed ballots be followed for special ballots, with any necessary modifications with regard to envelopes containing special ballots. The criteria for accepting or rejecting special ballots are those that applied at the initial count.

Only those special ballots that were removed from their double envelopes during the initial count are examined at the recount.

Unopened special ballot outer envelopes that were set aside at the first count are not re-examined at the recount. As explained in Section 2.7.3.1 above, if an outer envelope containing a special ballot was set aside at the first count, the ballot inside the envelope could not have been looked at or counted. The reasons for setting aside relate to deficiencies in the information on the outer envelope when read with the special ballot application. When applying item 12 of Schedule 4 at a recount – recounting the rejected ballots first – this should not include the special ballot outer envelopes examined at Elections Canada headquarters that were set aside and deemed spoiled. The ballots in those envelopes would never have been examined, and the recount team does not have the information needed to assess or remake a decision about the outer envelope. The same should apply to outer envelopes examined at the returning office and set aside under practically identical criteria, although the Act omits to deem these (rejected) ballots spoiled (see Section 2.7.3.1 above). Unopened special ballot outer envelopes that were treated as rejected at the first count may need to be reclassified at the recount as spoiled. [267, 277]

For those reasons, the criteria below relate to special ballots that were removed from their double envelopes during the first count and are examined at the recount.

5.2.1 How Special Ballot Voting Results Are Reported (Group 1 and Group 2 Results)

Elections Canada headquarters totals, for each electoral district, the results of the vote by special ballot of Canadian Forces electors, Canadian citizens residing outside Canada (international electors) and incarcerated electors. These three categories are designated as Group 1. Separate envelopes are prepared to seal the valid ballots cast by Canadian Forces electors, international electors and incarcerated electors.

The other category of electors whose votes are counted in Ottawa is the category of Canadian electors temporarily away from their electoral districts (national electors). The results of these votes are tallied separately as part of Group 2. The valid ballots cast for national electors are sealed in an envelope dedicated to this category of elector.

Thirty minutes after the close of the polls on polling day, the Group 1 and Group 2 results for each electoral district are sent to the appropriate returning officer by e-mail from Ottawa on the SVR Results form (see Form 7 in Appendix D for an example). These results are also imputed into the ERS. [280]

Of note, when a returning officer receives the Group 2 results from Ottawa, he or she adds these Group 2 results to the results for electors voting locally by special ballot in their own electoral district (local electors). For greater clarity, both of these categories – national electors (counted in Ottawa) and local electors (counted at the returning office) – are designated as Group 2.

The Statement of the Vote − Local Special Ballots, reproduced in Appendix D (Form 5) of this handbook, indicates the results only for local electors as these votes are counted at the returning office. This Statement of the Vote − Local Special Ballots does not contain the results for national electors or the results of the vote by special ballot of Canadian Forces electors, international electors and incarcerated electors.

The results of Group 1 and Group 2 are thus reported separately on polling night. All of the results of the special ballot votes are then added to the total results for each electoral district. [280]

When a judicial recount occurs, the special ballots of Canadian Forces electors, international electors, incarcerated electors and national electors are sent to the electoral district from Ottawa to be recounted. The returning officer should have on hand a copy of the Group 1 and Group 2 results, as well as the Statement of the Vote − Local Special Ballots, so as to facilitate the recount process.

5.2.2 Grounds upon Which to Accept Special Ballots

Upon examination and according to the criteria referred to in the Act, the recount team shall accept a ballot that is marked with the name of a candidate.

5.2.3 Grounds upon Which to Reject Special Ballots

Upon examination and according to the criteria referred to in the Act,Footnote 22 the recount team should reject a special ballot on the following grounds: [12 of Schedule 4]

5.2.4 Insufficient Grounds to Reject Special Ballots

Upon examination and according to the criteria referred to in the Act, the recount team should not reject a special ballot because:

5.3 Examining Spoiled Ballots

The recount team must examine the envelopes containing spoiled ballots without opening them. This includes both large outer envelopes containing spoiled ballots and special ballot outer envelopes that were deemed spoiled, as described above. [11(1) and 8 of Schedule 4] If there is any dispute concerning those envelopes or a request that one of them be opened, the question shall be determined by the judge. [11(2) of Schedule 4] This might happen where the spoiled ballot envelope appears to contain ballots but the Statement of the Vote – Local Special Ballots records no spoiled ballots. In this instance, the deputy returning officer may have erroneously placed a rejected ballot in a spoiled ballot envelope.

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.Footnote 24 [304(2)]

At the close of polls, spoiled ballots would not have been counted by the deputy returning officer toward the votes received by any candidate. [283(3)] Likewise, spoiled ballots will generally not be opened or counted at a judicial recount because, if a spoiled ballot were subsequently accepted as a valid ballot at a recount, it is possible that two ballots cast by a single elector would both be counted as valid votes. During voting, if an elector spoils a ballot and returns it to the deputy returning officer, the elector is given another ballot.

5.4 Examining Unused Ballots

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. [304(2)]

The recount team is to examine the envelopes containing unused ballots without opening them. If there is any dispute concerning one of those envelopes or a request that one of them be opened, the question must be determined by the judge. [11 of Schedule 4]




Footnote 12 Based on Form 3, Schedule 1 of the Act.

Footnote 13 Sections 284 and 285 of the Act.

Footnote 14 Re Moss and Blackburn, 1986 CanLII 2721 (ON SC) discusses the validity of ballots without a deputy returning officer's signature in the context of Ontario's Municipal Elections Act. The court considered then subsection 71(2) of the Municipal Elections Act (analogous to subsections 284(1) and (2) of the Act). The court held that a deputy returning officer's failure to initial a ballot is not a ground for rejecting the ballot unless the deputy returning officer concluded that he or she had not supplied the ballot. In the absence of evidence to the contrary, it is assumed that the deputy returning officer was satisfied that he or she had supplied the ballot.

Footnote 15 Couillard (Re), 2011 QCCS 2618 (CanLII), at para. 6.

Footnote 16 In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914, where the mark was beside (not over) the candidate's name in the box for the candidate's name adjacent to the circle, and there were no other marks on the ballot, the ballot was rejected.

Footnote 17 In Re Hewlett, 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 was valid and 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. This decision was also referred to in Judicial Recount Arising out of the 41st General Election in the Electoral District of Etobicoke-Centre (Re), 2011 CanLII 36068 (ON SC).

The Ontario Court of Appeal in Silva 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 had 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 CanLII 623 (ON CA).

In Judicial Recount Arising out of the 41st General Election in the Electoral District of Etobicoke-Centre (Re), 2011 CanLII 36068 (ON SC), a ballot marked with an X for one candidate and a small mark in the circle for a second candidate was considered to be valid, but a ballot marked with a check mark for one candidate and X s for all other candidates and a ballot marked with a check mark for one candidate and an X for a second candidate were considered to be invalid.

In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914, a ballot marked with a dark X in one circle and a light X in a second circle was considered to be valid.

Footnote 18 In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914, upon viewing the writing or mark that appeared on the ballot in question, the court was satisfied that it was a writing or mark by which the elector could be identified. The ballot was rejected.

The Ontario Court of Appeal considered municipal electoral legislation with similar statutory language to that of the Act, and it held that an 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 CanLII 623 (ON CA).

The Ontario Court of Appeal in Silva referred to the decision of Lucas-Astley v. Barrie, which held that the intention of the voter must be considered when examining the mark made on the ballot. 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.

In Janigan v. Harris, 1989 CanLII 4295 (ON SC), citing Re Bow Valley Election [1926 4 DLR 117, a mark that is too common to operate as an identifier will not invalidate a ballot. For other cases on whether a mark may identify an elector, see Re Fitzgerald, 1989 CanLII 4890 (NL SCTD) and Re Hewlett, 1996 CanLII 11659 (NL SCTD).

Footnote 19 In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914, the judge ruled that shading in the circle was an effort to emphasize the X. A ballot marked with the circle completely filled was also considered to be valid in Lukaszuk v. Kibermanis, 2005 ABCA 26. Contrast this with Bartlett v. McIntosh, 1999 CanLII 4773 (MB CA), where a ballot was found to be invalid because it contained an X in the circle opposite the candidate's name and that X had been totally obscured by the entire circle being shaded in.

Footnote 20 See Section 5.1.2 of this Handbook.

Footnote 21 The form of special ballots is set by section 186 and Form 4 of Schedule 1 of the Act.

Footnote 22 Sections 269 and 279 of the Act.

Footnote 23 In Couillard (Re), 2011 QCCS 2618, a special ballot was considered to be valid even if the voter mixed up the first names of two candidates but also indicated the party for which he or she wished to vote.

Footnote 24 In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914, a spoiled ballot envelope was opened as the envelope indicated that there was one spoiled ballot, whereas the Statement of the Vote indicated that there were no spoiled ballots, but rather one rejected ballot. There was no mark on the ballot indicating that it was a spoiled ballot. There was also no mark on the face of the ballot indicating for whom the elector intended his or her vote to be cast. The ballot was considered a rejected ballot and placed in the envelope for same.