PART 14

JUDICIAL RECOUNT

Interpretation

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 sections 300 to 309 to act may act, to the extent authorized, within or outside his or her judicial district.

Recount Procedure

Request by returning officer for recount

300. (1) If the difference between the number of votes cast for the candidate with the most votes and the number cast for any other candidate is less than 1/1000 of the votes cast, the returning officer shall make a request to a judge for a recount within four days after the results are validated.

Notice to candidates

(2) The returning officer shall notify each candidate or his or her official agent in writing of the request for a recount.

Recount automatic

(3) The judge shall fix the date for the recount to be conducted within four days after he or she receives the request.

Documents to be supplied

(4) The returning officer shall attend the recount and shall bring all relevant election 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.

Application for recount

301. (1) An elector may, within four days after the date on which a returning officer issues a certificate under section 297, apply to a judge for a recount.

Grounds for recount

(2) The judge shall fix a date for a recount if it appears, on the affidavit of a credible witness, that

    (a) a deputy returning officer has incorrectly counted or rejected any ballots, or has written an incorrect number on the statement of the vote for the votes cast for a candidate; or

    (b) the returning officer has incorrectly added up the results set out in the statements of the vote.

Deposit

(3) The applicant shall deposit with the clerk or prothonotary of the court the sum of $250 as security for the costs of the candidate who obtained the largest number of votes.

Date for recount and summons

(4) The date fixed for the recount shall be within four days after the judge receives the application. 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 candidates

(5) The judge shall notify each candidate or his or her official agent 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.

Right of candidate to attend

303. (1) Each candidate and up to three of his or her representatives may attend at a recount. If a candidate is not present and is not represented at the recount, no more than three electors are entitled to attend on the candidate's behalf.

No other person may attend

(2) Except with the permission of the judge, no person other than those described in subsection (1) and the returning officer may be present at the recount.

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 election 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 a candidate, 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 election 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.

Judge may terminate recount

307. Except in a case referred to in section 300, a judge may at any time terminate a recount on request in writing by the person who applied for the recount.

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 candidate; and

    (b) deliver the original of the certificate to the returning officer and a copy of it to each candidate.

Costs

309. (1) If a recount does not alter the result of the vote so as to affect the return, the judge shall

    (a) order the costs of the candidate for whom the largest number of votes have been cast to be paid by the person who applied for the recount; and

    (b) tax those costs, following as closely as possible the tariff of costs allowed with respect to proceedings in the court in which the judge ordinarily presides.

Disposal of deposit and right of action for balance

(2) The money deposited as security for costs shall, as far as is necessary, be paid out to the candidate in whose favour costs are awarded under subsection (1) and, if the deposit is insufficient to cover the costs, the party in whose favour the costs are awarded has their action for the balance.

Application for reimburse-
ment of costs

310. (1) After a recount, a candidate may make an application to the Chief Electoral Officer for reimbursement of his or her costs in respect of the recount, setting out the amount and nature of the costs and whether they were actually and reasonably incurred.

Chief Electoral Officer determines costs

(2) On receipt of an application under subsection (1), the Chief Electoral Officer shall determine the costs, and shall make a request for reimbursement to the Receiver General, up to a maximum of $500 for each day or part of a day during which the judge conducted the recount.

Payment from Consolidated Revenue Fund

(3) The Receiver General, on receipt of a request for reimbursement from the Chief Electoral Officer, shall pay to the candidate the amount requested from the Consolidated Revenue Fund.

Failure of Judge to Conduct Recount

Failure of judge to act

311. (1) If a judge does not comply with the provisions of sections 300 to 309, 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, the Yukon Territory, 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 in respect of the recount; and

    (b) may make an order with respect to costs.

Judge to obey order

(2) A judge found to be in default shall without delay comply with an order made under subsection (1).

Costs

(3) Remedies for the recovery of costs awarded under paragraph (1)(b) are the same as for costs in ordinary cases in the same court.

PART 15

RETURN OF THE WRIT

Return of elected candidate

313. (1) The returning officer, without delay after the sixth day that follows the completion of the validation of results or, if there is a recount, without delay after receiving the certificate referred to in section 308, shall declare elected the candidate who obtained the largest number of votes by completing the return of the writ in the prescribed form on the back of the writ.

Equality of votes

(2) If there is an equality of votes between the candidates with the largest number of votes, the returning officer shall indicate that on the return of the writ.

Sending of documents

314. (1) On completing the return of the writ, the returning officer shall without delay send to the Chief Electoral Officer all election documents in his or her possession together with

    (a) a report of the returning officer's proceedings in the prescribed form including his or her comments with respect to the state of the election documents received from the deputy returning officers;

    (b) a summary, in the prescribed form, of the number of votes cast for each candidate at each polling station; and

    (c) all other documents that were used at the election.

Report re: disappear-
ance of ballot box, etc.

(2) In any case arising under section 296, the returning officer shall mention specially in the report the circumstances accompanying the disappearance of the ballot boxes or the lack of any statement of the vote, and the mode by which the returning officer ascertained the number of votes cast for each candidate.

Duplicate of return to each candidate

315. (1) The returning officer shall forward a copy of the return of the writ to each candidate.

Premature return

(2) A premature return of the writ is deemed not to have reached the Chief Electoral Officer until it should have reached the Chief Electoral Officer in due course.

Correction of writ

(3) The Chief Electoral Officer shall, if necessary, send back the return of the writ and any or all of the related election documents to the returning officer for completion or correction.

Where report made before recount

316. (1) Where, at the time of the issue of an order under section 311 or 312, the returning officer for the electoral district in respect of which the order is made has made a return of the writ under section 314, the Chief Electoral Officer shall, on being provided with a certified copy of the order, send back to the returning officer all election documents required for use at the recount.

Duties of returning officer on recount

(2) On receiving a judge's certificate with respect to the result of a recount, the returning officer shall

    (a) if the result of the recount is that a person other than the person named in the original return is to be returned, make a substitute return of the writ; or

    (b) if the result of the recount is to confirm the return, send the papers back to the Chief Electoral Officer without delay and not make a substitute return of the writ.

Effect of substitute return

(3) A substitute return made under paragraph (2)(a) has the effect of cancelling the original return.

Procedure on receipt of return by Chief Electoral Officer

317. The Chief Electoral Officer, on receiving each return of the writ, shall, in the order in which the return is received,

    (a) indicate, in a book kept by the Chief Electoral Officer for the purpose, that he or she has received it; and

    (b) publish in the Canada Gazette the name of the candidate who was declared elected.

Equality of votes

318. If the return of the writ indicates an equality of votes between the candidates with the largest number of votes, the Chief Electoral Officer shall without delay

    (a) prepare and send to the Speaker of the House of Commons or, if none, two members of the House or two candidates who have been declared elected, as the case may be, a report stating that no candidate was declared elected in the electoral district because of the equality of votes; and