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Judicial Recount Handbook

5. Examining Ballots and Grounds to Reject Ballots

5.1. Examining Regular Ballots

Elections Canada provides election officers with a sample sheet of marked ballot papers which should be accepted or rejected. This bilingual document is a guideline on acceptable and unacceptable ways to mark a ballot. The sample sheet is included in Appendix D (Form 9) of this handbook.

5.1.1 Grounds upon Which to Accept Regular Ballots

Upon examination and according to the criteria referred to in the Act, the recount team should accept a ballot when:

Ballot envelopes found in the ballot box do not have to be properly sealed in order for the ballots therein to be counted during a recount. An Ontario High Court held that holding otherwise would deprive eligible electors of their franchise despite their lawful participation in the election.footnote 23

5.1.2 Grounds upon Which to Reject Regular Ballots

Upon examination and according to the criteria referred to in the Actfootnote 24, the recount team must reject a ballot on the following grounds:

  • It was not supplied by the election officer assigned to the polling station.
    • The absence of the election officer's initials may, but does not always, indicate that he or she did not supply a ballot. The election officer assigned to the polling station should have already initialled the ballots given to him or her. If at the initial count on polling night the election officer counting the votes discovered a ballot that was not initialled, and was satisfied that he or she issued it and that all ballots provided by the returning officer have been accounted for, he or she should have initialled it. Therefore, all regular ballots counted as valid should have been initialled. [s. 285 of the Act; s. 12 of Sch. 4].footnote 25
    • Despite the statutory requirement to initial the ballots, it is not unusual to encounter uninitialled ballots in a recount. An election officer assigned to the polling station may have forgotten to initial any such ballots or not understood the reason for the requirement. The initials serve as a precaution against ballot box stuffing (unauthorized ballots being added). However, this is not the only precaution against ballot box stuffing; Parliament has clearly recognized that an election officer may forget to initial certain ballots and that this fact alone should not be sufficient to reject those ballots. [s. 285 of the Act]
    • If a ballot that has not been initialled by the election officer is discovered during the recount:
      • The recount team must determine whether the ballot was properly issued by an election officer. One piece of evidence to this effect is that the same election officer issuing the ballot also counted it on polling night, suggesting that he or she was confident that he or she had issued it. A further piece of evidence that can be considered is the total count of ballots for the polling station, which is available in the Statement of the Vote (and further verifiable by counting the spoiled and unused ballots). If the total number of ballots in the ballot box equals the total number issued as stated in the Statement of the Vote, this is a further indication that no new ballots have been added to the box and that the uninitialled ballots were in fact issued by an election officer.
      • A recount team may also find that an uninitialled ballot was included with the rejected ballots because the ballot was not supplied by the election officer who counts the votes. In the latter case, there may be a handwritten number on the back of the ballot, indicating that the ballot was objected to by a candidate or by his or her representative. [ss. 284(1)(a), 286(1) of the Act; s. 12 of Sch. 4]
      • The judge may summon any election officer to give evidence on oath. [s. 304(5) of the Act] In a recount held in the province of Quebec following the 2011 general election, the parties agreed before the commencement of the recount not to dispute uninitialled ballots so as to avoid having to summon election officers.footnote 26
  • It has not been marked in a circle at the right of the candidates' names.
  • It has been marked for a person other than a candidate.

    Any votes given for a person other than a candidate are void and for that reason are rejected. [s. 284(1)(c) of the Act; s. 12 of Sch. 4] A vote that is void for this reason will be rare. It could occur where a person who was nominated was not eligible to be a candidate and the ballots were printed before the error was discovered.

  • It has been marked in more than one circle at the right of the candidates' names.
  • There is any writing or mark on it by which the elector could be identified.

    If the recount team, in the course of examining the ballots, discovers a ballot that was marked in such a way that it could identify the elector, including by a mark that could be traced back to the elector, the recount team shall reject the ballot. [s. 284(1)(e) of the Act; s. 12 of Sch. 4] The manner of marking the ballot may be acceptable under one criterion (marked in the circle) but a basis for rejection under another criterion (could identify the elector). This rule also seeks to avoid the purchase of votes, particularly a situation where an elector receives money in exchange for voting for a particular candidate and, to verify that the elector voted as promised, the elector is asked to mark his ballot in some unique manner that will stand out at the count (i.e. the mark is so distinctive as to be used to identify an elector). A voter's intention to identify himself or herself remains part of the overall consideration as to whether the ballot should be rejected.footnote 29

5.1.3 Insufficient Grounds to Reject Regular Ballots

Upon examination and according to the criteria referred to in the Act, the recount team should not reject a ballot in the following cases:

  • It has been marked by the election officer in a manner other than as set out in the Act. [s. 284(2) of the Act]
    • Ballots that were objected to during the initial count should have been marked by an election officer assigned to the polling station with a number. Marking by the election officer in a different way is not a basis to reject the ballot. No ballot is to be rejected by reason only that the election officer placed on it any writing, number or mark. [ss. 286(1), 304(2) of the Act]
    • The judge may summon any election officer to give evidence under oath. [s. 304(5) of the Act]
  • The election officer failed to remove the counterfoil.
    • If a ballot is found with the counterfoil attached, the election officer who counts the votes is required to remove a counterfoil during the counting and examination of the ballots. [s. 284(3) of the Act] The presence of a counterfoil is not a basis to reject a ballot.

Apart from the statutory criteria, if a ballot is otherwise acceptable, it should not be rejected by reason only that:

  • It is marked with a writing instrument other than a black lead pencil, unless the writing instrument or mark is so distinctive as to be used to identify an elector.
  • It is marked so that the mark extends outside the circle to the right of the candidate's name.
  • It is marked with a symbol other than an X.
    • An elector may mark a ballot with an X or other mark in the circular space opposite the name of the candidate of his or her choice provided that the mark cannot be used to identify the elector. [ss. 151(1)(b), 284(1)(e) of the Act]
  • It is marked in a way that the circle is completely filled.footnote 30
  • The ballot is not initialled but it is believed that an election officer issued it.
  • The wrong electoral district is printed at the back of the ballot

Where the back of the ballot is marked with the name of an electoral district other than the one for which the recount is conducted, the printing error does not affect the validity of the ballots cast as the operative part of the ballot (i.e. the front of the ballot), accurately sets forth the names of all of the candidates.footnote 31

5.2. Examining Special Ballotsfootnote 32

Item 8 of Schedule 4 of the Act requires that the process at a recount for examining regular ballots and resolving disputed ballots be followed for special ballots, with any necessary modifications with regard to envelopes containing special ballots. The criteria for accepting or rejecting special ballots are those that applied at the initial count.

Only those special ballots that were removed from their double envelopes during the initial count are examined at the recount. If there is a concern that an envelope was improperly set aside by election officers either at the returning office or at Elections Canada's distribution centre, this can be challenged via an application for a contested election, but not on a judicial recount.

For those reasons, the criteria below relate to special ballots that were removed from their double envelopes during the first count and are examined at the recount.

5.2.1 How Special Ballot Voting Results Are Reported (Group 1 and Group 2 Results)

Elections Canada's Distribution Centre totals, for each electoral district, the results of the vote by special ballot of Canadian Forces electors, Canadian citizens residing outside Canada (international electors) and incarcerated electors. These three categories are designated as Group 1 and are reported as such in the official results. Separate envelopes are prepared to seal the valid ballots cast by Canadian Forces electors, international electors and incarcerated electors. These envelopes are sent to the returning officer for the recount.

The other category of electors whose votes are counted in Ottawa is the category of Canadian electors temporarily away from their electoral districts (national electors). The results of these votes are tallied separately as part of Group 2. The valid ballots cast for national electors are sealed in an envelope dedicated to this category of elector and sent to the returning officer for the recount.

After the close of the polls on polling day, the Group 1 and Group 2 results for each electoral district are sent to the appropriate returning officer by email from Ottawa on the SVR Results form (see Form 7 in Appendix D for an example). These results are also inputted into the ERS (“ERS” is defined at Section 2.5.1. above of this handbook). [s. 280 of the Act]

The returning officer adds the results for electors voting locally by special ballot in their own electoral district (local electors) to the results of Group 2.

All of the results of the special ballot votes are then added to the total results for each electoral district. [s. 280 of the Act]

The Statement of the Vote − Local Special Ballots, reproduced in Appendix D (Form 5) of this handbook is available to the returning officer and the judge during the recount. It indicates the results only for local electors as these votes are counted at the returning office.

Special voting results for electors in the national, Canadian Forces, international and incarcerated categories are entered in various Statement of the Count forms, reproduced in Appendix D (Form 10). These forms contain similar types of information as that which is contained in the Statement of the Vote − Local Special Ballots. Statements of the Count are stored at Elections Canada's Distribution Centre and not usually made available for use during a recount. However, the SVR Results form (see Form 7 in Appendix D)—which contains the special ballots results for Canadian Forces electors, international electors, incarcerated electors and national electors, consolidated from all Statements of the Count—is made available to the returning officer and the recount judge. This being said, should the judge want to see the Statements of the Count, such statements could be made available upon request.

5.2.2 Grounds upon Which to Accept Special Ballots

Upon examination and according to the criteria referred to in the Act, the recount team shall accept a ballot that is marked with the name of a candidate. [ss. 213(2), 227(2), 238, 258 of the Act]

5.2.3 Grounds upon Which to Reject Special Ballots

Upon examination and according to the criteria referred to in the Act, the recount team should reject a special ballot on the following grounds: [s. 12 of Sch. 4]

  • It was not supplied by the Chief Electoral Officer. [s. 269(1)(a) of the Act]
  • It has not been marked. [ss. 269(1)(b), 279(1)(b) of the Act]
  • It has been marked with a name other than the name of a candidate (however, note the next section dealing with misspelled names that clearly indicate the elector's intent).
    • Any votes given for a person other than a candidate are void and for that reason must be rejected. [ss. 76, 269(1)(c), 279(1)(c) of the Act]
  • It has been marked with the names of more than one candidate. [ss. 269(1)(d), 279(1)(d) of the Act]
  • There is any writing or mark on it by which the elector could be identified. [ss. 269(1)(e), 279(1)(e) of the Act]
  • It was cast at the returning office but was not supplied for the election. [s. 279(1)(a) of the Act]
  • It has been marked with the candidate's political affiliation instead of the name of the candidate.
    • The ballot is not rejected if the elector wrote the candidate's political affiliation in addition to the name of the candidate. [ss. 269(2), 279(2), 279(3) of the Act]

5.2.4 Insufficient Grounds to Reject Special Ballots

Upon examination and according to the criteria referred to in the Act, the recount team should not reject a special ballot because:

  • The elector wrote on it the name of a candidate incorrectly, or wrote the candidate's political affiliation in addition to the name of the candidate, if the ballot clearly indicates the elector's intent.footnote 33 [ss. 269(2), 279(2), 279(3) of the Act]

5.3. Examining Spoiled Ballots

The recount team must examine the envelopes containing spoiled ballots without opening them. If there is any dispute concerning those envelopes or a request that one of them be opened, the question shall be determined by the judge. This might happen where the spoiled ballot envelope appears to contain ballots but the Statement of the Vote records no spoiled ballots. In this instance, an election officer may have erroneously placed a rejected ballot in a spoiled ballot envelope. [ss. 8, 11 of Sch. 4]

While a judge at a recount of the ballots has the power to open the envelopes containing spoiled ballots, he or she is not under any obligation to do so or to examine the spoiled ballots.footnote 34 [s. 304(2) of the Act]

At the close of polls, spoiled ballots would not have been counted by the election officer toward the votes received by any candidate. Likewise, spoiled ballots will generally not be opened or counted at a judicial recount because, if a spoiled ballot were subsequently accepted as a valid ballot at a recount, it is possible that two ballots cast by a single elector would both be counted as valid votes. During voting, if an elector spoils a ballot and returns it to the election officer, the elector is given another ballot. [ss. 152, 213(4), 242(1), 258(3) of the Act]

5.4. Examining Unused Ballots

While a judge at a recount of the ballots has the power to open the envelopes containing unused ballots, he or she is not under any obligation to do so or to examine the unused ballots. [s. 304(2) of the Act]

The recount team is to examine the envelopes containing unused ballots without opening them. If there is any dispute concerning one of those envelopes or a request that one of them be opened, the question must be determined by the judge. [s. 11 of Sch. 4]


Footnote 23 Bevilacqua (Re), (1988) 56 D.L.R. (4th) 698 (Ont. H.C. J.).

Footnote 24 Sections 284 and 285 of the Act.

Footnote 25 Re Moss and Blackburn, 1986 CanLII 2721 (ON SC) discusses the validity of ballots without an election officer's signature in the context of Ontario's Municipal Elections Act. The court considered then subs. 71(2) of the Municipal Elections Act (analogous to subs. 284(1) and (2) of the Act). The court held that an election officer's failure to initial a ballot is not a ground for rejecting the ballot unless the officer concluded that he or she had not supplied the ballot. In the absence of evidence to the contrary, it is assumed that the officer was satisfied that he or she had supplied the ballot.

Footnote 26 Couillard (Re), 2011 QCCS 2618 (CanLII), at para. 6.

Footnote 27 In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914 (ON SC), where the mark was beside (not over) the candidate's name in the box for the candidate's name adjacent to the circle, and there were no other marks on the ballot, the ballot was rejected.

Footnote 28 In Hewlett (Re), 1996 CanLII 11659 (NL SC), at paras. 20-24, the Newfoundland Supreme Court held that where an elector placed a mark in two candidates' boxes, but it was obvious that the elector intended to vote for one of the candidates only, this ballot was valid and counted. The court considered three examples. First, an elector had marked an X for a candidate, then obliterated it and voted for a second candidate. Second, an elector made a mark in the box for one candidate, but stopped after making one diagonal line and subsequently marked an X for another candidate. In these two cases, the court found the ballots valid. However, in the third example, one X was found in one candidate's box, and two Xs were found in another. The ballot was rejected because it was impossible to determine the intention of the voter. This decision was also referred to in Judicial Recount Arising out of the 41st General Election in the Electoral District of Etobicoke Centre (Re), 2011 CanLII 36068 (ON SC), at paras. 32, 33.

The Ontario Court of Appeal in Silva found that “in deciding whether a given mark amounts to the ‘casting' of a vote, the voter's intention, as manifested by the nature of the mark is a relevant consideration to be taken into account in determining whether the vote must be rejected [because the voter had placed marks next to the names of more than one candidate].” As it was clear that the voter meant to scratch out one mark and to cast a vote for only one candidate, this ballot was acceptable (O'Donohue v. Silva, 1995 CanLII 623 (ON CA).

In Judicial Recount Arising out of the 41st General Election in the Electoral District of Etobicoke Centre (Re), 2011 CanLII 36068 (ON SC), at para. 33, a ballot marked with an X for one candidate and a small mark in the circle for a second candidate was considered to be valid, but a ballot marked with a check mark for one candidate and X s for all other candidates and a ballot marked with a check mark for one candidate and an X for a second candidate were considered to be invalid.

In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914 (ON SC), a ballot marked with a dark X in one circle and a light X in a second circle was considered to be valid.

Footnote 29 In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914, upon viewing the writing or mark that appeared on the ballot in question, the court was satisfied that it was a writing or mark by which the elector could be identified. The ballot was rejected.

The Ontario Court of Appeal considered municipal electoral legislation with similar statutory language to that of the Act, and it held that an elector must be identifiable on a balance of probabilities in order for this to be a valid reason for rejecting a ballot (O'Donohue v. Silva, 1995 CanLII 623 (ON CA). The Ontario Court of Appeal in Silva referred to the decision of Lucas-Astley v. Barrie, [1995] O.J. No. 255 (Gen. Div.) which held that the intention of the voter must be considered when examining the mark made on the ballot. It could not have been the intention of the legislature to provide that any mark, tear or writing will vitiate a ballot, however inadvertent or accidental that mark, tear or writing may be.

In Janigan v. Harris, 1989 CanLII 4295 (ON SC), citing Re Bow Valley Election [1926] 4 DLR 117, page 121, a mark that is too common to operate as an identifier will not invalidate a ballot. For other cases on whether a mark may identify an elector, see Re Fitzgerald, 1989 CanLII 4890 (NL SCTD), at paras. 17, 20, 22, 24, 27, 29, 30; and Re Hewlett, 1996 CanLII 11659 (NL SC) at paras. 13–15, 17–20, 23, 25, 26.

Footnote 30 A ballot marked with the circle completely filled was considered to be valid in Lukaszuk v. Kibermanis, 2005 ABCA 26, at para. 54. Contrast this with Bartlett v. McIntosh, 1999 CanLII 4773 (MB CA), at para. 10, where a ballot was found to be invalid because it contained an X in the circle opposite the candidate’s name and that X had been totally obscured by the entire circle being shaded in.

Footnote 31 Tamblyn v. Nuttall, 2015 ONSC 7179, at paras. 8–10.

Footnote 32 The form of special ballots is set by s. 186 and Form 4 of Sch. 1 of the Act.

Footnote 33 In Couillard (Re), 2011 QCCS 2618, at para. 18, a special ballot was considered to be valid even if the voter mixed up the first names of two candidates but also indicated the party for which he or she wished to vote.

Footnote 34 In Judicial Recount Arising out of the 39th General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914 (ON SC), a spoiled ballot envelope was opened as the envelope indicated that there was one spoiled ballot, whereas the Statement of the Vote indicated that there were no spoiled ballots, but rather one rejected ballot. There was no mark on the ballot indicating that it was a spoiled ballot. There was also no mark on the face of the ballot indicating for whom the elector intended his or her vote to be cast. The ballot was considered a rejected ballot and placed in the envelope for same.