Judicial Recount Handbook
2. Judicial Recounts – Preliminary Explanations
2.1. What is a Judicial Recount?
After the polls close on election night, the ballots for each polling division in each electoral district are counted by an election officer assigned to the polling station in the presence of another election officer and any candidates or their representatives who are present or, if no candidates or representatives are present, at least two electors. The election officer who counts the votes prepares a Statement of the Vote. 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's Distribution Centre in Ottawa. A summary of ballot counting procedures can be found 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 who sits in the electoral district where the election results are validated. [ss. 2(1), 299(1) of the Act] The recount may be conducted by adding the number of votes reported in the Statements of the Vote or by counting the ballots. [s. 304(1) of the Act; s. 6 of Sch. 4] As mentioned in Section 1.1 above, there are two types of recounts—automatic and by request of an elector.
A judicial recount is conducted by a judge, but it is important to note that the judge is acting as persona designata under the Act. This can be seen, for example, from the fact that the Act specifically grants the judge some powers that would be inherent if they were working in a traditional judicial capacity (e.g. the power to summon witnesses and require the giving of evidence on oath with "the same power that is vested in any court of record" (s. 304(5) of the Act). The judge has the powers granted under the Act, but the Act recognizes that the formality of a court process may be curtailed in service of the goal of a speedy and final resolution of the election.
2.2. Automatic Judicial Recount After a Close Result
This 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 4 votes cast. [s. 300(1) of the Act]
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. [s. 300(1) of the Act] The request is made to a judge who sits in the electoral district where the results are validated. [ss. 2(1), 299(1) of the Act] See Section 220.127.116.11 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 procedure of the applicable court has been used in the past.
2.2.3 Written Notices of the Application
The returning officer gives each candidate or his or her official agent written notice of the request for an automatic recount. [s. 300(2) of the Act] The returning officer should also notify Elections Canada of the application for a recount. 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. [s. 300(3) of the Act] Once the recount has begun, the judge must, as far as practicable, proceed continuously, except for necessary breaks. [s. 305 of the Act]
The goal of the recount is to provide a timely and final determination as to the elected member of the House of Commons. This may be important in determining the makeup of the government. For this reason, timelines in the Act are very tight. Although the federal Interpretation Act provides that holidays and weekends are not to be taken into account in the computation of time unless a contrary intention is found in the Act, it is Elections Canada's position that the Act does include such a contrary intention and timelines for recounts should include weekend days and holidays.Footnote 5
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:
- An election officer incorrectly counted or rejected ballots.
- An election officer wrote an incorrect number on the Statement of the Vote, a document that enunciates the number of votes cast for each candidate.
- The returning officer incorrectly added up the results set out in the Statements of the Vote. [s. 301(2) of the Act]
The burden of proof is fairly low at this stage of the proceedings.Footnote 6 Courts have granted recount applications on evidence of errors having occurred such as the incorrect counting of unused ballots, even though such errors did not affect election results.Footnote 7 The election officer's obligation to count correctly—set out in s. 283 of the Act—applies not only to the votes cast, but to all ballots. Some judges have gone as far as to hold that the requirement on the judge to fix a date for the recount is mandatory if it appears certain that counting mistakes exist.Footnote 8 There is case law considering the number of mistakes to be immaterial. A recount was granted in Saskatchewan on evidence of only two votes being improperly rejected.Footnote 9
Despite the light burden of proof imposed on applicants, the following allegations have been held insufficient to order a recount, as they fail to demonstrate that ballots were incorrectly counted or rejected or that the Statement of the Vote was incorrectly completed:Footnote 10
- statistics that 81/234 polling divisions had a percentage of rejected ballots that was higher than 2% and at times reaching 14%;
- election officer difficulties in counting ballots (this does not prove an actual error in the count);
- ballot boxes found unsealed during the vote on polling day;Footnote 1
- irregularities regarding the serial number of unused ballots;
- election officers receiving text messages during the count of advance poll ballots;
- irregularities as to eligibility of voters.
Vague and imprecise allegations may also be rejected. The judicial recount application should describe the circumstances surrounding the errors alleged with a sufficient degree of precision.Footnote 12
2.3.2 Application and Deadline
An elector must make the application within four days of the validation of results by the returning officer. An application may only be filed after notifying the returning officer in writing. [s. 301(1) of the Act]
The returning officer must notify each candidate or his or her official agent in writing of the application for a recount. This will allow candidates to make representations before the judge makes a final determination on the request for a recount. [s. 301(1.1) of the Act] The returning officer should also notify Elections Canada of the application for a recount.
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 procedural rules of the applicable court is used. An application is accompanied by affidavit evidence.
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.
Typically, counsel for the Chief Electoral Officer will attend the recount and assist the judge as necessary.
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. [s. 302 of the Act]
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. [s. 301(3) of the Act] Cost consequences are discussed in Section 7 of this handbook.
The judge shall notify each candidate or his or her official agent in writing of the date, 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 by mail or posting or in any other manner. [s. 301(5) of the Act] The form should be adjusted accordingly.
2.3.7 Deadline to Conduct the Judicial Recount
If the application for a recount is granted, the recount must commence within four days after the judge receives the application. [s. 301(4) of the Act]
See the explanation in Section 2.2.4 above about the calculation of deadlines 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, but may not terminate an automatic recount. As a terminated recount is a recount that has not been concluded, the judge need not issue a certificate under s. 308 of the Act setting out the number of votes cast for each candidate. [ss. 307, 308 of the Act]
2.4 Attendees at a Judicial Recount and Their Roles
2.4.1 Attendees at the Recount
Schedule 4 to the Act contains a list of persons who are entitled to attend the recount. Only the following persons may be present during the recount: [s. 1 of Sch. 4]
- the judge
- the returning officer
- the staff that the returning officer asks to assist in the recount
- the recount teams, each consisting of a handler, a recorder and one representative appointed by each candidate who wishes to be represented on the recount team
- each candidate
- up to two representatives per candidate who are not members of a recount team
- one legal counsel per candidate
- legal counsel for the Chief Electoral Officer
- any other person whom the judge allows to observe the recount, including the media
[ss. 1, 3 of Sch. 4]
2.4.2 Roles of Attendees at the Recount
18.104.22.168 The Returning Officer
Note: The role of the returning officer is further outlined in Appendix C of this handbook, which contains the Checklist for Returning Officers.
The returning officer attends the recount and brings the relevant materials, including:
- The sealed ballot boxes (described in Section 2.7 below).
- The Statements of the Vote (reproduced in Appendix D, Form 4) forms that were used by the returning officer to complete the Result of Voting form (reproduced in Appendix D, Form 6).
- All ballots cast and voting results provided for that electoral district under the Special Voting Rules (Part 11 of the Act). This includes special ballots that were counted at Elections Canada's Distribution Centre, which are sent from Ottawa to the returning officer. [ss. 300(4), 301(4) of the Act]
Arrangements will need to be made for the secure transit of ballots, if necessary. If circumstances permit, it may be preferable not to move the ballot boxes in order to best preserve their physical integrity and security, and to instead conduct the recount in the returning office.
The returning officer may be asked by the judge to assist with finding a location to conduct the recount and arranging for security (e.g. arranging for the presence of a security guard).
Once a judicial recount has begun, the role of a returning officer is the following:
- Providing general logistical assistance and support to the judge by being able to supply the judge with paper, tables, chairs and any other necessary materials.
- Appointing two members of each recount team—one as handler and the other as recorder. [s. 3 of Sch. 4]
- When asked by the judge, providing technical explanations of the procedures used in an election. This includes explaining the training provided to election officials, the procedures regarding the opening of ballot boxes and the conduct of the election on polling day.
- If requested by the judge, carrying out or assigning staff to carry out tasks during the recount that are best carried out by a non-partisan official, such as ferrying disputed ballots from the counting table to the judge, photocopying documents and preparing the Master Recount Report. A copy of this report is included in Appendix E (Form 4) of this handbook.
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 that could clarify any facts at issue, noting that such persons could be summoned to give evidence. [ss. 304(4) and (5) of the Act]
The returning officer should not speak with the media, but should instead invite the media to call Elections Canada at 1-800-463-6868.
22.214.171.124 The Recount Teams
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
- one to have the responsibilities of recorder
- one representative appointed by each candidate who wishes to be represented on the recount team. [s. 3, Sch. 4]
The number of recount teams has varied over the years, some recounts have had 8 teams while others 20, with the average typically in the range of 15–20 teams set up to recount tens of thousands of ballots. Fewer teams are warranted when space is too tight. In smaller settings, the judge, counsel and the returning officer can get to the teams that need assistance more quickly. When space permits, it is equally opportune to have a larger number of teams as counting could go extremely quickly once the teams become familiar with the process. The main impediment to multiplying teams is the reduced speed at which the judge and returning officer can answer questions.
The handler and recorder solemnly declare that they will carry out their functions with complete impartiality and according to the law. A copy of the Appointment and Solemn Declaration form is included in this handbook in Appendix E (Form 8).Footnote 13
Each team is to be assigned a sequential team number, beginning with 1. [s. 3 of Sch. 4]
Each 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. [s. 4 of Sch. 4]
The functions of a recount team are to:
- Examine the ballots in each ballot box assigned to it to ascertain whether the team agrees on their classification.
- Set aside for examination by the judge any ballots on whose classification there is no agreement (disputed ballot).
- Count and report the number of ballots in each classification. [s. 5 of Sch. 4]
See Section 5 below for more detailed guidance related to the examination of ballots and the grounds for rejecting ballots.
126.96.36.199 The Candidates, Representatives and Legal Counsel
Each candidate and up to two of his or her representatives may attend at a recount to observe the process. These representatives do not form part of the recount team and are different from the representative chosen by each candidate to form part of that team. [ss. 1(b), 3 of Sch. 4]
Candidates may supply multiple representatives at a recount. These representatives could rotate in and out as necessary during the recount and be replaced by new representatives. Each representative must maintain the secrecy of the vote. It is advisable that every candidate representative solemnly declare on the Authorization of Candidate's Representative ─ Recount form, attached in Appendix E (Form 9) of this handbook, that they:
- will maintain and aid in maintaining the secrecy of the vote;
- will not communicate or use the personal information to which they will have access;
- subject to any contrary order of the judge, will not take any photographs or make any audio or video recordings of the recount proceeding.
Candidates could provide a list of authorized candidate representatives to the judge at the outset of the count. Candidate representatives should also display an identification badge.
Candidate representatives who interfere with the recount process, engage in any misconduct or fail to obey the directions or decisions of the judge may be asked to leave or be removed from the recount location.
188.8.131.52 Legal Counsel for the Chief Electoral Officer
The role of legal counsel for the Chief Electoral Officer is impartial and limited to providing the judge with technical and legal information at his or her request. Legal counsel may also assist with the duties of the returning officer.
184.108.40.206 The Judge
Judges of the following courts are authorized by the Act to conduct recounts:
- in Ontario, a judge of the Superior Court of Justice
- in Quebec, a judge of the Superior Court of Quebec
- in British Columbia, Nova Scotia and Prince Edward Island, a judge of the Supreme Court of the province
- in Alberta, Manitoba, New Brunswick and Saskatchewan, a judge of the Court of Queen's Bench of the province
- in Newfoundland and Labrador, a judge of the Trial Division of the Supreme Court of Newfoundland and Labrador
- in Yukon, a judge of the Supreme Court of Yukon
- in the Northwest Territories, a judge of the Supreme Court of the Northwest Territories
- in Nunavut, a judge of the Nunavut Court of Justice
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 preside a judicial recount may act, to the extent authorized, within or outside his or her judicial district. [ss. 2, 299 of the Act]
Missing ballot box or Statement of the Vote
In order to arrive at the facts with respect to a missing ballot box or Statement of the Vote, a recount judge 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. The returning officer could also be called to testify in this regard. [ss. 296(2), 304(4) of the Act]
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. [ss. 304(4), 493, 500(2) of the Act]
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. [ss. 296(3), 304(4) of the Act]
Summoning election officers
A judge conducting a judicial recount may summon any election officer 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. [s. 304(5) of the Act]
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. Any irregularities with respect to election documents may be best addressed through a contested election procedure.
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. [s. 23 of Sch. 4]
Matters not dealt with under Schedule 4
Any matter not dealt with in the procedures set out in Schedule 4 of the Act and any question arising as to the application of these procedures are to be determined by the judge, including whether persons present at the recount are permitted to communicate with the media. [s. 24 of Sch. 4]
220.127.116.11 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. [s. 304(6) of the Act] The returning officer generally assists the judge with the hiring of such assistants.
Examples of clerical assistant tasks include:
- attending to photocopies (usually more than one assistant is recommended);
- accounting for all the ballot boxes that are sent to the tables and returned to the ballot box storage room;
- receiving the recount results and making electronic data entries of such results;
- acting as runners carrying the ballot boxes and paperwork around the room as required;
- monitoring the entrance to the recount room;
- supervising the room where the ballot boxes are stored; and
- acting as standbys who can take over in case a clerical assistant has to withdraw.
The field liaison officer could also be present to lend a hand and help develop local field expertise on how to conduct a judicial recount.
18.104.22.168 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. [s. 1(e) of Sch. 4] Individuals granted such permission 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 may be faced with requests from the media to attend the recount (in some cases, requests have been presented by way of motion). The judge shall take any measure that he or she considers appropriate. [ss. 2, 24 of Sch. 4]
The recount judge might choose to meet media representatives before the commencement of the recount to explain the process.Footnote 14
In some instances, judges have refused media access inside the recount room. However, the media were allowed to stay outside, and the judges would periodically update them.
In other instances, judges allowed the media inside the recount room. Depending on the recount, media representatives were:Footnote 15
- asked to swear or affirm (a solemn declaration would be equally acceptable) that they would maintain the confidentiality of identifiable electors;
- prohibited from publishing, making public or in any way disclosing:
- recount proceedings prior to the issuance of a recount certificate; [s. 308 of the Act]
- information that would identify an elector;
- forbidden from using a camera, recording device or photographic equipment within the recount room, except with the judge's permission;
- prohibited from sitting or standing at the tables where ballots were being counted, but could observe the proceedings, including any ballots that do not identify the voter involved, and position themselves as close as necessary to hear clearly the submissions made on behalf of the parties or others in attendance, as well as the decisions rendered and reasons given by the judge in each instance;
- prohibited from handling any ballots or examining or handling other election documents.
During a 2015 judicial recount, a table for the media was set up at the back of the room. Media was allowed up to the front of the room to hear submissions by counsel and the judge's orders. Members of the public were also allowed to be present, but were instructed to remain at the back of the room.Footnote 16
2.5 Recount Logistics
2.5.1 Choosing the Location of the Recount
The Act does not specify the location of the recount, other than to state at s. 299 that recount judges must sit in the electoral district where the results are validated. The recount may be held within or outside the judge's judicial district.Footnote 17 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. The choice of location should also take into account the available space, the quality of the ventilation, as well as the sufficiency of human resources and the availability of appropriate accommodations for recount workers (especially in remote electoral districts). Bear in mind there will be lots of paperwork at each recount table, which may impact the size of the tables chosen for the recount teams as well as the number of recount teams.
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 inputted 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 venue being considered is not the returning office or the courthouse, or if it appears that leased premises will be needed, the returning officer 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 their security while in transit and while at the location of the recount.
Location was a primary issue in a 2015 judicial recount in the electoral district of Desnethé–Missinippi–Churchill River. The ballot boxes were located at the returning office in the town of La Ronge, Saskatchewan. The poor condition of the ballot boxes made La Ronge the obvious choice of location for the recount. However, La Ronge presented certain difficulties, namely a potential shortage of staff and candidate representatives for the counting tables. While Elections Canada was ready to bus in staff from the adjacent electoral district of Prince Albert (three hours to the south), candidate representatives would have been more difficult to organize. When it became clear that there would be insufficient accommodation in La Ronge for the required number of staff and candidate representatives, a consensus was reached to hold the recount in the electoral district of Saskatoon–University (a five-hour drive to the south). The returning officer for Desnethé–Missinippi–Churchill River was in charge of transporting the ballots from La Ronge and generally organizing the work flow during the recount. The returning officer of Saskatoon–University hosted the recount team at the returning office and helped with setting up his office, the computer system and photocopiers, and procuring staff members. This division of labour greatly enhanced the process.
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. It is recommended to have at least two functioning photocopiers on site. The conduct of the recount may require high volumes of photocopying (of disputed ballots and various forms). Problems with traffic flow or photocopying capacity could slow down the recount.
2.5.2 Organizing the Recount and Forming the Recount Teams
As a preliminary step, Elections Canada headquarters will send a recount kit to the returning officer 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 and the disputed ballots envelope) will need to be labelled with the name of the electoral district, the polling division number and the title of the envelope.
Before the first recount day, the returning officer and his or her staff could pre-label the envelopes with the name and number of the electoral district, the polling division number and the names of the candidates. They could also prepare labels for the rejected, spoiled and disputed ballot envelopes.
When setting up the recount tables, the returning officer and his or her staff supply each table with the following materials:
- Blank Recount Ballot Box Reports (Appendix E, Form 3);
- Tally Sheets (Appendix D, Form 3);
- Pre-labelled candidate envelopes;
- Pre-labelled rejected, spoiled and disputed ballot envelopes;
- Appointment and Solemn Declaration forms (Appendix E, Form 8);
- Some plastic containers to divide the various piles of ballots and keep the paperwork more organized on the table (optional);
- Pencils, erasers and pens.
In selecting 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 as the handler and the recorder. In so doing, he or she should make it clear that the judge will determine 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. In some instances, the recount judge has ordered that handlers and recorders be agreed to by all candidates.Footnote 18
Once the recount teams have been selected, training could be provided by the returning officer and his or her staff. 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.
2.5.3 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.
The process could be more efficient if certain common issues are addressed prior to the recounting of the ballots, at the beginning of the recount or at least as soon as they present themselves the first time. Some common issues Elections Canada encourages the parties to discuss are:
- Uninitialled ballots (see Section 5.1.2. of this handbook);
- Counterfoils not having been removed (see Section 5.1.3. of this handbook);
- The manner of dealing with disputed ballots (see Section 4 of this handbook);
- Advance copies of the Statements of the Vote;
- Discrepancies between the rejected and spoiled ballot numbers recorded on the Statement of the Vote and the actual number of ballots that may be found in the rejected and spoiled ballots envelopes (see Sections 2.7.1., 22.214.171.124., 126.96.36.199. and 5.3. of this handbook).
188.8.131.52 Agreement on How to Deal with Disputed Ballots
Parties could establish up front if representations on disputed ballots will be made during the recount or at the end of it.
Waiting until the end of the recount to decide on all disputed ballots could slow down the process considerably. That said, waiting until the end to decide on disputed ballots does have advantages, namely freeing the candidates' counsel to resolve disagreements at the tables before they became disputed ballots, and allowing counsel to discuss the disputed ballots at the end of the day and come to agreements on a number of them (this allows for disputed ballots to be discussed more calmly, often in a largely empty room).
The alternative approach would be to wait until a sufficient number of ballots are disputed, at which time the judge can call on counsel to make short representations. On one hand, in this type of situation, the hustle and bustle of counting activities could lead to higher levels of tension and the impression that snap decisions must be taken. On the other hand, the prompt determination of disputed ballots for a completed ballot box while the recount of other ballot boxes continues may yield useful guidance to all of the participants in the recount, and may speed up the process.
The Act leaves the treatment of disputed ballot boxes to the judge's discretion. The following is an example of one approach that has worked well in past recounts:
- When a ballot is disputed, it is set aside in an envelope attached to the Recount Ballot Box Report and the ballot box is sealed (but not the envelopes contained in it) and stored until the judge decides on the disputed ballots. A "Disputed Ballots" annotation is placed on the seal to signal that ballots in the box are being disputed.
- After the judge rules on the disputed ballots, the box is unsealed by the judge, who then places the disputed ballots in the correct envelopes and returns the box to the returning officer.
- The returning officer's staff then re-seals the ballot box. The new seal contains the annotation "After Judge's Decision."
- The ballot boxes that contained no disputed ballots are sealed with a note that they are "Undisputed."
184.108.40.206 Statements of the Vote
Other procedural steps could be agreed upon at the outset. During a 2015 judicial recount,Footnote 19 the returning officer arranged for copies of the Statements of the Vote to be made at the outset of the recount: for each counsel and for the judge.
2.5.4. Room Setup
There are no specific legislative provisions prescribing how a recount room should be set up. Much is left to the judge's discretion, but he or she often consults with parties and the returning officer in this regard.
By way of example only, the room could be organized to resemble a courtroom. The judge's table can be placed at the front of the room facing out, with court staff at a table next to him or her. Tables could be set out with handlers and recorders facing the judge. A handful of tables could then be placed at the side of the room for counsel, candidates and candidates' representatives. A recount support staffer (often referred to as the "automation coordinator") could set up a desk and computer at the front of the room behind dividers for data entry. The judge could use a separate room as his or her chambers. During submissions on disputed ballots, tables could be placed directly in front of the judge for counsel and candidate representatives. A row of chairs could be placed along the back of the room for members of the public to hear representations from the parties on the disputed ballots. A table could be placed at the back corner of the room for the media.
Ballot boxes which have not been recounted are usually stored in a separate room. After being recounted, the boxes are sealed and moved to a separate location of the same room or to another room (e.g. the judge's chamber). Ballot boxes containing disputed ballots should be separated from those that do not (they are placed within the same room or in a separate room). Rooms containing ballot boxes must be securely locked during breaks and overnight.
Ballot boxes and corresponding Statements of the Vote should be kept in order by polling station to facilitate the despatching of boxes to the tables. A chart should be used to indicate the time the ballot box goes out to a counting table and returns, the ballot box number, runner name, and the table to which the box was assigned. A staff member should monitor all ballot box traffic using this chart.
2.5.5 Gowning of Counsel
As the recount procedure is not a court procedure it is the view of Elections Canada that gowning is not required. However, this issue remains in the discretion of the judge.
2.6 How the Recount is Conducted
The Act provides that a judge shall conduct the recount in one of the following manners:
- Adding the number of votes reported in the Statements of the Vote.
- Counting the valid ballots.
- Counting all of the ballots returned by election officers or by the Chief Electoral Officer. This would include the envelopes set aside unopened under the special voting rules (see Section 2.6.3 below). [s. 304(1) of the Act]
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. [s. 6 of Sch. 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. [s. 287(1) of the Act] 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. [s. 304(1) of the Act] 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 assigned to that polling division who voted.
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. [s. 304(3) of the Act]
2.6.3 Counting All of the Ballots
In the case of a recount by counting all of the ballots returned by election 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. 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. [ss. 304(2) and (3) of the Act]
A recount of all ballots includes the special ballots. A special ballot is a ballot that can be sent in by mail, or filled in at a local returning office. The special ballot differs from a regular ballot in that the elector: (1) writes in the name of his or her preferred candidate on the ballot, (2) places the ballot in an inner envelope and seals it, (3) places the inner envelope in the outer envelope and signs a declaration on the outer envelope and seals it and (4) sends the sealed outer envelope to Elections Canada. An elector must submit an application to Elections Canada for a special ballot before receiving one. Images of a special ballot, inner envelope and outer envelope can be found in Appendix D (Form 2).
During the recount, apart from the Statement of the Vote and the envelopes and ballots listed above, the judge may not open any envelopes that appear to contain other documents or refer to any other election documents. [s. 304(2) of the Act]
2.6.4 Requirement for the Recount to Proceed Continuously
As noted, it is important that the recount proceed in a timely manner to provide finality and certainty to the election results. As s far as it is practicable, the judge shall proceed continuously with the recount and remain present throughout, except for necessary breaks. The recount will take place between the hours of 9:00 a.m. and 6:00 p.m. unless the judge orders otherwise. The count will continue until it is completed. 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. [s. 305 of the Act; s. 4 of Sch. 4]
There is no provision in the Act that suggests that the count should be suspended for weekends or holidays and the need for finality would militate against it.
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. [s. 306(1) of the Act]
The judge shall personally supervise the sealing of documents at a recount and take all of the necessary precautions for their security. [s. 306(2) of the Act] 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.
2.6.6 Early Termination of Recount
Except for automatic recounts, a judge may at any time terminate a recount on request for withdrawal in writing by the person who applied for the recount. When a recount is terminated in this way, before it is completed, the validated election results for the electoral district stand. [s. 307 of the Act] The judge need not prepare a Certificate of the Judge under s. 308 of the Act. However, costs may be awarded by the judge against the party that requested the recount. Also, all candidates involved may apply to the Chief Electoral Officer for a reimbursement of their costs, up to $500 for each day or part day during which the judge conducted the recount.
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 is rejected (i.e. not counted in favour of any candidate) by an election officer after the elector puts the ballot in the ballot box and during the vote counting process, for specific 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.). [ss. 152, 284, 285 of the Act]
The ballot box also includes a copy of the Event Log, the document envelope, the seal control sheet and a Statement of the Vote. [ss. 287, 288 of the Act]
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 in Appendix D (Form 1) of this handbook. [s. 116(1) of the Act, Form 3 of Sch. 1]
220.127.116.11 Spoiled Ballots
An important and often misunderstood distinction is between spoiled and rejected 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 or was previously rendered unusable in the printing process. The spoiled ballot is not placed in the ballot box and does not form part of the count. It is to be marked as "spoiled" by the election officer and set aside. The election officer gives the elector another ballot. [s. 152 of the Act]
18.104.22.168 Rejected Ballots
A rejected ballot is a ballot that is cast by the elector but is not counted for a 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 forms part of the count of total ballots cast. [ss. 284, 285, 287(1), 288(2) of the Act]
22.214.171.124 Unused Ballots
An unused ballot is a ballot not given to an elector during the election process.
2.7.3 Special Ballots
Special ballots are provided for under the special voting rules [ss. 177–280 of the Act] for votes cast by:
- Canadian Forces electors
- Electors residing outside Canada (international electors)
- Incarcerated electors
- Electors residing in Canada who:
- are temporarily away from their electoral district and choose to vote by special ballot (national electors)
- are voting locally by special ballot in their own electoral district (local electors)
- are temporarily away from their electoral district and choose to vote by special ballot (national electors)
A special ballot is a ballot that can be sent by mail, or filled in at a local returning office. A special ballot simply provides a blank space for the elector to write in the name of a candidate. [s. 186 of the Act, Form 4 of Sch. 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 contains a declaration prescribed by the Chief Electoral Officer and identifies the elector. Images of a special ballot, inner envelope and outer envelope can be found in Appendix D (Form 2).
The special ballots for each electoral district are received both by the local returning officer and at Elections Canada's Distribution Centre in the National Capital Region.
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 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. [s. 241 of the Act]
126.96.36.199 Rejected and Spoiled Special Ballots
It is possible for an elector residing in Canada 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. [s. 242 of the Act]
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. For instance, this may occur for special ballots counted at Elections Canada's Distribution Centre if: (1) the special ballot officers ascertain that the information concerning the elector as set out in the declaration prescribed by the Chief Electoral Officer (currently located on the outer envelope) does not correspond with the information on the elector's Application for Registration and Special Ballot, (2) that declaration 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 unopened 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. [ss. 267, 277 of the Act]
If, after receiving an elector's outer envelope but before counting the inner envelopes, the special ballot officers at Elections Canada's Distribution Centre ascertain that an elector has voted more than once, they shall set the elector's outer envelope aside, unopened. The ballot contained in it is deemed under the Act to be spoiled and will not be counted for any particular candidate. [ss. 267(2) and (3)(c) of the Act]
The ballots mentioned above are not part of the count, nor are they part of the recount. If there are irregularities concerning such ballots or their treatment, such irregularities may be challenged under a contested election procedure.
As with regular ballots, special ballots may have been rejected during the count according to criteria in the Act (e.g. unmarked, marked with a name other than the name of a candidate, etc.). [ss. 269, 279 of the Act]
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 the ballots returned by election officers or by the Chief Electoral Officer.
2.8.1 Handling of 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. [s. 9 of Sch. 4]
Ballot boxes are most often stored in a secure room where they are guarded and managed by recount support staff (and locked and guarded by security guards during breaks and overnight). A record-keeping process should be set up to record on paper all ballot box "ins and outs" and assigned recount tables. It may include elements such as the time the ballot box goes out to a counting table and returns, the ballot box number, runner name, and the table to which the box was assigned, but the goal is to at all times be able to keep control of the flow of ballot boxes.
If there are no disputed ballots, the boxes are sealed and moved to a designated section of the secure room. If there are disputed ballots, the boxes are securely stored in another section of the same room or in a separate room that is just as secure (e.g. the judge's chamber) until such time as the disputed ballots are addressed by the judge.
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. [s. 7(1) of Sch. 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.
A ballot box must 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. [s. 7(2) of Sch. 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 [ss. 10–18 of Sch. 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. [s. 8 of Sch. 4]
Strictly interpreted, this provision means that if Team 2 is counting the last special ballot box, Teams 1 and 3 cannot start on a regular ballot box until Team 2 is done. As this may unduly delay the recount process, the judge could direct that Teams 1 and 3 start on a regular ballot box even though Team 2 is still working on the last special ballot box. [s. 23 of Sch. 4]Footnote 20
Recounting special ballots and suggested modifications from the regular process are dealt with in Section 5.2 below.
Return to source of Footnote 4 lid votes consist of the votes cast for candidates and the rejected ballots.
Return to source of Footnote 5 Interpretation Act, R.S.C. 1985, c. I-21, ss. 26–30, 35.
Return to source of Footnote 6 Normand c. Couillard, 2015 QCCS 5579, at paras 11–13; O'Grady c. Nantel, 2015 QCCS 5001, at para. 7; Re McCullough v. Maple Creek Electoral District,  2 W.W.R. 185 (Sask. Dist. Ct.), at paras. 3–7; Maynard v. Kania,  O.J. No. 4262 (Ont. S.C.J.); Koloski v. Merasty,  S.J. No. 60 (Sask. Q.B.), at paras. 3, 8–10.
Return to source of Footnote 7 Koloski v. Merasty,  S.J. No. 60 (Sask. Q.B.), at para.8.
Return to source of Footnote 8 Koloski v. Merasty,  S.J. No. 60 (Sask. Q.B.), at paras. 3, 8; Maynard v. Kania,  O.J. No. 4262 (Ont. S.C.J.), at para. 7.
Return to source of Footnote 9 McCullough v. Maple Creek Electoral District,  2 W.W.R. 185 (Sask. Dist. Ct.), at paras. 3–7. See also Normand c. Couillard, 2015 QCCS 5579, at para. 35.
Return to source of Footnote 10 O'Grady c. Nantel, 2015 QCCS 5001, at paras. 3, 12–15.
Return to source of Footnote 11 In the course of a 2015 judicial recount in the electoral district of Edmonton Mill Woods, Justice Burrows observed two issues. With respect to ballot box #1, the yellow envelope seal had been initialed by the wrong election officer. With respect to ballot box #28, the recount team reported that none of the envelopes in the ballot box were sealed. He ruled that these are issues that might be relevant to a contested election application, but not a recount. The handler and recorder continued to count the ballots as they would count them if the issues had not arose.
Return to source of Footnote 12 O'Grady c. Nantel, 2015 QCCS 5001, at paras. 22, 23.
Return to source of Footnote 13 With respect to the 2015 judicial recount held in the electoral district of Barrie–Springwater–Oro-Medonte, the judge declined to require that participants sign an oath. Instead, handlers, recorders and candidate representatives were made to swear an oath of confidentiality orally. The handlers and recorders also verbally swore to act in an impartial manner.
Return to source of Footnote 14 See Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914, at pp. 2, 10.
Return to source of Footnote 15 Judicial Recount Arising out of the 41st General Election in the Electoral District of Etobicoke Centre (Re), 2011 CanLII 36068 (ON SC), at paras. 10–18; 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, at paras. 19–29. Both cases emphasize the principles of open proceedings and public scrutiny of judicial decisions.
Return to source of Footnote 16 The recount was held in the electoral district of Barrie–Springwater–Oro-Medonte.
Return to source of Footnote 17 In Normand c. Couillard, 2015 QCCS 5579, even though the application for judicial recount was filed in the judicial district of Montmagny, the recount was held in the judicial district of Rivière-du-Loup for logistical reasons related to the proximity of the returning office. This was made possible due to s. 299 of the Act.
Return to source of Footnote 18 In the matter of the judicial recount in the electoral district of Hochelaga during the 42nd general election.
Return to source of Footnote 19 The recount was held in the electoral district of Barrie–Springwater–Oro-Medonte.
Return to source of Footnote 20 Such a direction was made by Justice Burrows during the 2015 judicial recount in Edmonton Mill Woods.