Judicial Recount Handbook
1.1. About This Handbook
This handbook explains the process for carrying out a judicial recount under the Canada Elections Act (the "Act"). It is intended for participants at a judicial recount or those who are involved in an application for a recount. These may include the returning officerFootnote 1, field liaison officerFootnote 2, judge, candidates, candidates' representatives, electors, members of the recount teams, legal counsel and Elections Canada officials.
A judicial recount is a process by which a judge is called upon to conduct a second or fresh count of the votes cast in an electoral district (i.e. riding) following an election. In a typical recount, teams of counters are assigned to review and tabulate each ballot. Recounts are automatic where there is a small margin of difference between the votes cast for the winning candidate and those cast for any other candidate. Judicial recounts may also take place upon the application of an elector where there is evidence that election officers have incorrectly counted, tabulated or rejected ballots. Schedule 4 of the Act (reproduced in Appendix A of this handbook) sets out a detailed process for holding a judicial recount in both cases.
This handbook first explains what is a recount and how it differs from the first count of votes on election night. It then contrasts the two types of recounts mentioned above. It also describes the preliminary steps to be taken in preparation for the conduct of a recount and sets out the roles of the various recount participants. It details the process for recounting the ballots, dealing with disputed ballots and recording recount results. It discusses the grounds for accepting or rejecting ballots. It provides information on how to seek the reimbursement of recount expenses.
As the aim is to keep this handbook as practical and comprehensive as possible, lessons learned from past recounts have been integrated throughout the document. For the reader's convenience, relevant sections of the Act or Schedule 4 of the Act (abbreviated to "Sch.4") are indicated in square brackets after each related statement. Appendix D of this handbook contains forms that are used or consulted in relation to the counting of ballots on election night. Lastly, Appendix E contains forms that are used or consulted with respect to a recount.
This handbook does not address contested elections. Allegations that an elected candidate was not eligible to be a candidate or that there were irregularities, fraud or corrupt or illegal practices that affected the result of an election can be addressed only by an application to contest an election. [s. 524 of the Act]
Of note, a recount is not a process to deal with potential violations of the Act. Any alleged violations of the Act should be brought to the attention of the Commissioner of Canada Elections. The Commissioner's website can be consulted at www.cef-cce.ca. It is the duty of the Commissioner to ensure that the Act is complied with and enforced. [s. 509.2 of the Act]
1.2. Legal Disclaimer
This handbook has been updated to reflect the changes made in 2014 to the judicial recount provisions pursuant to amendments contained in the Fair Elections Act (Bill C-23) and other, less substantial, amendments to these provisions brought about in 2019 by the Elections Modernization Act (Bill C-76).Footnote 3 It is designed for information purposes only. The information set out in this handbook is not law and is not intended to replace the official text of the Act. How the Act applies to any particular case will depend on the individual circumstances of that case. Elections Canada reserves the right to reconsider any interpretations expressed in this handbook, either generally or in light of the actual circumstances of any case and in accordance with continuing legislative and judicial developments.
This handbook mentions court decisions for illustration purposes. The jurisprudence cited is not exhaustive. Some cases refer to provincial legislation, which may differ from the Act. The case law cited should be taken merely as a starting point for research.
1.3. Questions About This Handbook
Please direct any questions about this handbook to Elections Canada. We can be reached by telephone at 1-800-463-6868, by fax at 613-954-8584, by email through our website at www.elections.ca or by mail at Elections Canada, 30 Victoria Street, Gatineau, Quebec, K1A 0M6.
Return to source of Footnote 1 Canada has 338 federal electoral districts. The Chief Electoral Officer appoints one returning officer for each electoral district. Returning officers are key election officers, responsible for preparing and conducting the election in their electoral district in accordance with the Act and instructions of the Chief Electoral Officer. When a general election is called, each returning officer opens an office in his or her electoral district to serve as the centre of operations for the duration of the election (see ss. 16, 22, 24, 60 of the Act).
Return to source of Footnote 2 Field liaison officers are responsible for advising and supporting Elections Canada and returning officers. They are in charge of a region, which is composed of approximately 10 to 14 electoral districts. They typically help out a returning officer whose electoral district is the subject of a recount (see s. 23.2 of the Act).
Return to source of Footnote 3 S.C. 2014, c. 12; S.C. 2018, c.31