Canada Elections Act (S.C. 2000, c. 9)

Procedure for Recounts

Persons Who May Be Present

• 1 Only the following persons may be present during the recount in addition to the judge, the returning officer and the staff that the returning officer asks to assist in the recount and the recount teams:

  • (a) the candidates;

  • (b) up to two representatives for each candidate who are not members of a recount team;

  • (c) one legal counsel for each candidate;

  • (d) legal counsel for the Chief Electoral Officer; and

  • (e) any other person that the judge allows.

• 2 Persons referred to in paragraph 1(e) 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.

Recount Teams

• 3 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 and the other those of recorder — and one representative appointed by each candidate who wishes to be represented on the recount team. Each team is to be assigned a sequential team number, beginning with 1.

Process — General

• 4 Each recount team shall be assigned to a table and shall remain at its table except during breaks as directed by the judge. To the extent practical, these breaks shall commence only after the recount of a particular ballot box has been completed.

• 5 The functions of a recount team are the following:

  • (a) to examine the ballots in any ballot box assigned to it to ascertain whether the team agrees on their classification;

  • (b) to set aside for examination by the judge any ballots on whose classification there is not agreement (“disputed ballot”); and

  • (c) to count and report the number of ballots in each classification.

• 6 At any time during the recount, the candidates referred to in paragraph 1(a) may consent to having the judge conduct the recount by adding the number of votes reported in the statements of the vote, instead of the counting of ballots.

• 7 (1) The returning officer shall assign ballot boxes to 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.

  • (2) A ballot box shall 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.

• 8 Ballots cast under Part 11 of this Act shall be assigned to recount teams 1 to 3. The process set out in sections 10 to 18 shall be followed with any necessary modifications with regard to envelopes containing ballots cast under that Part. No other ballots or ballot boxes shall be assigned to those teams until the recount of those ballots has been completed.

• 9 Only the handler or the recorder of a recount team shall handle a 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.

Process — for Each Ballot Box

• 10 When a ballot box and the corresponding original statement of the vote are delivered to a recount team,

  • (a) the recorder shall note the number of the ballot box on the Recount Ballot Box Report in the prescribed form; and

  • (b) the handler shall open the ballot box, remove and open the large envelope referred to in subsection 288(3) of this Act and remove from it the envelopes containing ballots.

• 11 (1) The recount team shall examine the envelopes containing spoiled ballots and unused ballots without opening them.

  • (2) If there is any dispute concerning one of those envelopes or a request that one of them be opened, the question shall be determined by the judge.

• 12 The recount team shall recount first the ballots in the envelope containing the rejected ballots, if any — according to the criteria referred to in section 269, 279, 284 or 285 of this Act — and then, envelope by envelope in alphabetical order of the candidates’ names, the ballots that were classified as valid votes in favour of candidates.

For Each Envelope — Review of Ballots

• 13 The recount of the ballots from each of those envelopes shall be conducted in accordance with the following steps:

  • (a) the handler shall choose the appropriate envelope;

  • (b) if any ballots were placed with that envelope as a result of the earlier examination of another envelope, the handler shall place those ballots in a single pile (the “counting pile”);

  • (c) the handler shall unseal the envelope and, taking the first of those ballots,

    • (i) if a counting pile has already been established, place it on the counting pile, and

    • (ii) if no counting pile has yet been established, establish one with that first ballot;

  • (d) the handler shall invite all members of the recount team to examine — but not handle — the ballot;

  • (e) the handler shall ascertain whether there is unanimous agreement in the recount team that the ballot

    • (i) was correctly classified, or

    • (ii) should be assigned to some other classification;

  • (f) if there is no unanimous agreement, each representative of a candidate is entitled to call for one of their candidate’s representatives who is not a member of a recount team or their candidate’s legal counsel, or both, who may then make representations to the team;

  • (g) if, after any such representations, there is still no unanimous agreement on the classification of the ballot, the ballot shall be treated as a disputed ballot, in which case

    • (i) the handler shall take the ballot from the counting pile, print on the back of the ballot (with the pen or pencil supplied to the recount team in small but legible script), a number in the form “XX-Y” where “XX” is the ballot box number and “Y” is a unique sequential number starting at “1” for each disputed ballot within that box,

    • (ii) the recorder shall make an entry for the disputed ballot in the register of disputed ballots in the Recount Ballot Box Report, indicating its number and the envelope from which it originated, and

    • (iii) the handler shall put the disputed ballot with an additional envelope marked “disputed ballots”;

  • (h) if there is unanimous agreement that the ballot was correctly classified, it shall remain on the counting pile;

  • (i) if there is unanimous agreement that the ballot should be assigned to some other classification, the handler shall take it from the counting pile and

    • (i) if the envelope containing ballots of that other classification has not yet been recounted, the handler shall place the ballot with that envelope and the recorder shall note the re-classification of the ballot and the reason for it on the Recount Ballot Box Report, and

    • (ii) if the envelope containing ballots of that other classification has already been recounted, the handler shall place the ballot in that envelope and the recorder shall note the re-classification of the ballot and the reason for it on the Recount Ballot Box Report and adjust the number of ballots recorded in the report for that other classification accordingly;

  • (j) for each subsequent ballot in the envelope, the handler shall place it on top of the counting pile, and steps (d) to (i) apply with respect to it; and

  • (k) when all ballots from the envelope have been examined by the team, the handler shall count the ballots in the counting pile, the recorder shall make a note of that number on the Recount Ballot Box Report and the handler shall place those ballots in the envelope without sealing it.

Preparation for Return of Ballot Box

• 14 (1) When all envelopes from the ballot box — except those designated as containing spoiled ballots and unused ballots — have been recounted, if there are any disputed ballots,

  • (a) the handler shall count the disputed ballots and place them in the disputed ballots envelope and indicate the number of the corresponding ballot box on the envelope;

  • (b) the recorder shall note the number of disputed ballots on the Recount Ballot Box Report, confirm the accuracy of the report with the recount team, invite the candidates’ representatives to initial it and attach it to the disputed ballots envelope together with the corresponding original statement of the vote; and

  • (c) the handler shall not seal the envelope containing rejected ballots, if any, or the envelopes for each candidate, and shall place the envelopes, including the unsealed disputed ballots envelope, in the ballot box along with the Recount Ballot Box Report, the corresponding original statement of the vote and the large envelope.

  • (2) However, if there are no disputed ballots,

    • (a) the handler shall seal the envelope containing rejected ballots, if any, and the envelopes for each candidate and place them in the ballot box;

    • (b) the recorder shall confirm the accuracy of the Recount Ballot Box Report with the recount team, invite the candidates’ representatives to initial it, and give it to the handler; and

    • (c) the handler shall place the Recount Ballot Box Report, the corresponding original statement of the vote and the large envelope in the ballot box.

  • (3) When the actions in subsection (1) or (2) have been completed, the handler shall signal by raised hand that the recount team has completed its work with that ballot box.

Return of Ballot Box

• 15 A person designated by the returning officer from among his or her staff shall bring the recount team another ballot box and shall take the recounted ballot box from the recount team and deliver it to the returning officer.

• 16 On receipt of a recounted ballot box, the returning officer shall ascertain whether it contains a disputed ballots envelope.

If There Are No Disputed Ballots

• 17 (1) If the ballot box does not contain a disputed ballots envelope, the returning officer shall provide the Recount Ballot Box Report and attached original statement of the vote to the judge.

  • (2) The judge shall review the report and statement and, if satisfied, shall initial the report to indicate his or her approval.

  • (3) If the judge approves the report, the returning officer shall cause the sealed envelopes to be placed in the large envelope, the large envelope to be sealed and placed in the ballot box, the ballot box to be sealed and placed in a secure location designated for ballot boxes for which the recount has been completed and the report and statement to be given to the person responsible for the preparation of the Master Recount Report.

  • (4) If the judge does not approve the report, the judge shall determine how to proceed with the ballot box.

If There Are Disputed Ballots

• 18 If the ballot box contains a disputed ballots envelope, the judge shall cause it to be dealt with in accordance with the following steps:

  • (a) photocopies of the front and back of each disputed ballot in the disputed ballots envelope shall be made — one for each party referred to in paragraphs 1(a) to (c), as the case may be, and one for the judge. Then the disputed ballot shall be returned to the disputed ballots envelope;

  • (b) after step (a) is completed for all the disputed ballots, the disputed ballots envelope shall be returned to the ballot box;

  • (c) the judge shall then set a time for the determination of the classification of the disputed ballots. Before the judge makes a determination with respect to a disputed ballot, each party may make submissions. Unless the judge decides otherwise, for the purpose of making submissions, any party opposing the original classification of the ballot will be considered an applicant, and all other parties will be considered respondents;

  • (d) the judge shall, in the Recount Ballot Box Report, indicate in writing the determination with respect to each disputed ballot and complete the judge’s disposition portion of the report;

  • (e) the judge shall cause each ballot for which a determination of classification has been made to be placed into the appropriate envelope corresponding to the determination, and shall cause the envelopes to be sealed and placed in the large envelope and the large envelope to be sealed and placed in the ballot box;

  • (f) the judge shall cause the ballot box and its contents to be sealed and placed in a secure location designated for ballot boxes for which the recount has been completed; and

  • (g) the judge shall sign the Recount Ballot Box Report, which shall be given, with the judge’s disposition noted on it, to the person responsible for the preparation of the Master Recount Report along with the original statement of the vote.

Master Recount Report and Certificate of Votes

• 19 A person designated by the judge shall transfer the final results shown on the Recount Ballot Box Reports onto the Master Recount Report.

• 20 Each of the parties referred to in paragraphs 1(a) to (c), as the case may be, and the returning officer shall have the opportunity, from time to time and at the conclusion of the preparation of the Master Recount Report, to inspect and compare the Recount Ballot Box Reports and the Master Recount Report, and to bring any error or discrepancy noted to the attention of the judge.

• 21 When the recount is complete, the parties referred to in paragraphs 1(a) to (c), as the case may be, may make their final submissions to the judge with respect to the accuracy of the Master Recount Report and the judge shall determine any issues arising from those submissions and ensure that the Master Recount Report is completed in accordance with any such determination.

• 22 The judge shall — on the basis of the Master Recount Report — without delay prepare a certificate in the prescribed form that sets out the number of votes cast for each candidate and deliver the original of the certificate to the returning officer and a copy of it to each of the parties referred to in paragraphs 1(a) to (c), as the case may be.

Other Powers of the Judge

• 23 The judge may alter these procedures during the recount after giving the parties referred to in paragraphs 1(a) to (c), as the case may be, and the returning officer the opportunity to make submissions.

• 24 Any matter not dealt with in these procedures, and any question arising as to the application of these procedures, is to be determined by the judge, including whether persons referred to in section 1 are permitted to communicate with the media.