179-G-2021-06 – Instructions to permit the counting of certain ballots under Division 7 of Part 11 of the Canada Elections Act
(Burlington and Don Valley West)
Canada Elections Act
44th General Election
Instructions to permit the counting of certain ballots under Division 7 of Part 11 of the Canada Elections Act
(Burlington and Don Valley West)
Date of issue: September 13, 2021
Whereas the writs for the 44th General Election were issued on August 15, 2021, with polling day on September 20, 2021;
Whereas Division 4 of Part 11 of the Canada Elections Act (the "Act") permits electors residing in Canada to make an application for registration and special ballot and to vote by special ballot;
Whereas sections 227, 238 and 241 of the Act essentially provide that an elector who votes under Division 4 of Part 11 of the Act shall vote by writing the name of the candidate of his or her choice on the special ballot—or, if the elector votes with a ballot that is not a special ballot, by marking the ballot with a cross or other mark in the circular space opposite the name of the candidate of his or her choice—, placing the ballot in the inner envelope and sealing it, signing the declaration prescribed by the Chief Electoral Officer, and placing the inner envelope and the declaration—if it is not on the outer envelope—in the outer envelope and sealing it;
Whereas an elector who votes in the presence of an election officer at the office of a returning officer is required, pursuant to section 237.1 of the Act, to prove his or her identity and residence in accordance with section 143 of the Act;
Whereas, as a result of an instruction given in error by an election officer to an elector, the ballot marked by 36 electors in the electoral district of Burlington and 45 electors in the electoral district of Don Valley West were not placed in an inner envelope, and then in an outer envelope;
Whereas, notwithstanding the election officer's error, the returning officer has determined that each of these electors has proven his or her identity and residence in accordance with sections 143 and 237.1 of the Act and is entitled to vote in the electoral district;
Whereas these ballots cannot be counted pursuant to the process set out in sections 276 to 278 of the Act;
Whereas allowing these ballots to be counted in the circumstances of this situation would not threaten the integrity of the vote, given that the electors affected by the error proved their identity and residence, that voting took place in the presence of an election officer and that the returning officer has indicated on the list of electors that each of these electors has received a special ballot;
And whereas section 179 of the Act provides the following:
179. For the purpose of applying this Part to, or adapting any provision of this Part in respect of, a particular circumstance, the Chief Electoral Officer may issue any instructions that he or she considers necessary in order to execute its intent.
Therefore, pursuant to section 179 of the Act, the Chief Electoral Officer issues the following instructions:
1. These instructions apply during the 44th General Election in the electoral district of Burlington and the electoral district of Don Valley West.
2. An election officer referred to in section 273 shall not set aside an elector's inner envelope on one of the grounds set out at paragraphs 277(1)(a) and (b) of the Act where, as a result of an instruction given in error to the elector by an election officer:
- the ballot marked by the elector was not placed in an inner envelope, and then in an outer envelope; and
- the prescribed declaration was not signed by the elector.
Chief Electoral Officer