open Secondary menu

Regulation Adapting the Canada Elections Act for the Purposes of a Referendum

Part 14

Judicial Recount


Definition of "judge"
  • 299. (1) In this Part, "judge" means a judge who sits in the electoral district where the results are validated.
Powers of judge
  • (2) A judge who is authorized by subsections 300(4), 301(4) to (6), sections 302, 304 to 306, and 308 of this Act, and sections 29 and 30 of the Referendum Act to act may act, to the extent authorized, within or outside his or her judicial district.

Recount Procedure

  • 300. (1) Not applicable.
  • (2) Not applicable.
  • (3) Not applicable.
Documents to be supplied
  • (4) The returning officer shall attend the recount and shall bring all relevant referendum materials including
    • (a) the ballot boxes;
    • (b) the statements of the vote used to validate the results; and
    • (c) all ballots cast and statements of the vote made in accordance with Part 11.
  • 301. (1) Not applicable.
  • (2) Not applicable.
  • (3) Not applicable.
Date for recount and summons
  • (4) Where an application for recount is made under subsections 29(1) or (2) of the Referendum Act, and the judge orders a recount, the judge shall summon the returning officer to attend and to bring the relevant ballot boxes and statements of the vote together with the ballots that were counted, and the statements that were completed, under Part 11.
Notice to applicants
  • (5) The judge shall notify each person who made an application pursuant to subsection (4) in writing of the time and place fixed for the recount. The judge may decide that service of the notice will be substitutional, by mail or posting or in any other manner.
Returning officer required to attend
  • (6) A returning officer to whom a summons is directed under subsection (4) shall obey it and shall be present throughout the recount.
More than one application
  • 302. If a judge receives more than one application for a recount for more than one electoral district, the recounts shall be conducted in the order in which the judge receives the applications.
  • 303. Not applicable.
Recount procedure
  • 304. (1) The judge shall conduct the recount by adding the number of votes reported in the statements of the vote or by counting the valid ballots or all of the ballots returned by the deputy returning officers or the Chief Electoral Officer.
Documents that may be examined
  • (2) If a recount of all of the ballots returned is required, the judge may open the sealed envelopes that contain 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 referendum documents.
Steps to be taken by judge
  • (3) At a recount, the judge shall
    • (a) count the ballots in the manner prescribed for a deputy returning officer or a special ballot officer;
    • (b) verify or correct, if necessary, each statement of the vote; and
    • (c) review the decision of the returning officer with respect to the number of votes cast for each answer to a referendum question, in the case of a missing or destroyed ballot box or statement of the vote.
Powers of judge
  • (4) For the purpose of arriving at the facts with respect to a missing ballot box or statement of the vote, the judge has all the powers of a returning officer with regard to the attendance and examination of witnesses who, in case of non-attendance, are subject to the same consequences as in the case of refusal or neglect to attend on the summons of a returning officer.
Additional powers of judge
  • (5) For the purpose of conducting a recount, a judge has the power to summon any deputy returning officer or poll clerk as a witness and to 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.
Clerical assistants
  • (6) Subject to the approval of the Chief Electoral Officer, a judge may retain the services of support staff to assist in the performance of his or her duties under this Part.
Proceedings to be continuous
  • 305. The judge shall, as far as practicable, proceed continuously with a recount, except for necessary breaks and, unless the judge orders otherwise, between 6:00 p.m. and 9:00 a.m.
Security of documents
  • 306. (1) During a break described in section 305, the judge or any other person who has possession of ballots and other referendum documents shall keep them sealed in parcels, and the seal shall be signed by the judge and may be signed by any other person in attendance.
Supervision of sealing
  • (2) The judge shall personally supervise the parcelling and sealing of ballots and documents at a recount and take all necessary precautions for their security.
  • 307. Not applicable.
Procedure at conclusion of recount
  • 308. At the conclusion of a recount, the judge shall
    • (a) seal the ballots in a separate envelope for each polling station and without delay prepare a certificate in the prescribed form that sets out the number of votes cast for each answer to a referendum question; and
    • (b) deliver the original of the certificate to the returning officer and a copy of it to each agent who made a request pursuant to subsection 10(1) of the Referendum Act.
  • 309. Not applicable.
  • 310. Not applicable.

Failure of Judge to Conduct Recount

Failure of judge to act
  • 311. (1) If a judge does not comply with the provisions of subsections 300(4), 301(4) to (6), sections 302, 304 to 306, and 308 of this Act, and sections 29 and 30 of the Referendum Act, an aggrieved party may, within eight days after the failure to comply, make application for an order under subsection (3)
    • (a) in the Province of Ontario, to a judge of the Superior Court of Justice;
    • (b) in the Province of Quebec, New Brunswick or Alberta, Yukon, the Northwest Territories or Nunavut, to a judge of the Court of Appeal of the Province or Territory;
    • (c) in the Province of Nova Scotia or British Columbia, to a judge of the Supreme Court of the Province;
    • (d) in the Province of Manitoba or Saskatchewan, to a judge of the Court of Queen's Bench for the Province; and
    • (e) in the Province of Prince Edward Island or Newfoundland, to a judge of the trial division of the Supreme Court of the Province.
Application on affidavit
  • (2) An application under subsection (1) may be made on affidavit, which need not be entitled in any matter or cause, that sets out the facts relating to the failure to comply.
Order of judge
  • (3) The judge to whom an application is made under subsection (1) shall, if it appears that there was a failure to comply, make an order
    • (a) fixing the time, within the following eight days, and place to hear the application;
    • (b) directing the attendance of all parties interested at that time and place; and
    • (c) giving directions for the service of the order, and of any affidavit on which it was granted, on the judge alleged to have failed to comply and on any other interested party.
Affidavits may be filed in reply
  • (4) The judge complained of and any interested party may file in the office of the clerk, registrar or prothonotary of the court of the judge to whom the application is made affidavits in reply to those filed by the applicant and shall provide the applicant with copies of them on demand.
Order of court after hearing
  • 312. (1) After hearing the judge complained of and any other parties, the judge to whom the application was made or another judge of the same court
    • (a) shall make an order dismissing the application or ordering the judge in default to comply with the requirements of this Act and the Referendum Act in respect of the recount;
    • (b) not applicable.
Judge to obey order
  • (2) A judge found to be in default shall without delay comply with an order made under subsection (1).
  • (3) Not applicable.

Federal Referendum Legislation – Contents