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Judicial Recount Handbook

6. The Completed Recount

6.1. Master Recount Report

A person designated by the judge shall transfer the final results shown on all of the Recount Ballot Box Reports onto the Master Recount Report. [s. 19 of Sch. 4] A copy of the Master Recount Report is included in Appendix E (Form 4) of this handbook.

Once a determination on disputed ballots is made for a particular polling division and a Recount Ballot Box Report is approved by the judge, the person designated by the judge may promptly transfer the results of the recount from the Recount Ballot Box Report to the ERS (“ERS” is defined at Section 2.5.1. above of this handbook). Once the recount results are inputted for each polling division, the ERS will generate a poll-by-poll report, which will constitute the Master Recount Report. If the recount is conducted at a place other than the returning office (e.g. at the courthouse), it may be necessary to transport the Recount Ballot Box Reports to and from the returning office to enter results in the ERS.

If difficulties arise in generating the Master Recount Report from ERS or if there are technical challenges in automatically populating the Certificate of the Judge from the Master Recount Report, the judge could simply indicate over his signature that the poll-by-poll report is the “Master Recount Report” and fill in the certificate by hand.footnote 35

6.1.1 Right to Inspect the Master Recount Report

Each party (candidate, candidate’s representatives and candidate’s legal counsel) 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. [s. 20 of Sch. 4]

6.1.2 Final Submissions to the Judge on the Master Recount Report

When the recount is complete, candidates, their representatives and counsel may make final submissions to the judge with respect to the accuracy of the Master Recount Report. 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. [s. 21 of Sch. 4]

6.2. Preparation of the Certificate of the Judge

At the conclusion of the judicial recount, the judge (or staff designated by the judge) must seal the ballots in a separate envelope for each polling station and, on the basis of the Master Recount Report, without delay prepare a Certificate of the Judge, entitled “Results of Voting after a Judicial Recount,” which sets out the number of votes cast for each candidate. The judge shall deliver the original of the certificate to the returning officer and a copy of it to each of the candidates, their representatives and legal counsel. [ss. 308(a), 308(b) of the Act; s. 22 of Sch. 4] The returning officer also sends a copy to Elections Canada without delay. A sample Certificate of the Judge is included in this handbook in Appendix E (Form 5).

The returning officer then declares elected the candidate who obtained the largest number of votes by completing a Return of the Writ (see Section 6.6 below). [s. 313 of the Act]

6.3. Recount Judgment or Report

The Act is silent on whether an official “judgment” should be issued after a recount. As noted, during a recount the judge is acting in the capacity of a persona designata. There is no legal obligation upon recount judges to draft a judgment. Practice has shown that judgments are often released, but not always. In the 2015 judicial recount of Edmonton Mill Woods, for instance, the judge prepared a summary of the recount process with his comments on various aspects, which he made available to counsel for the candidates and to Elections Canada. He also agreed that this report could be shared with other judges conducting a judicial recount.

6.4. Returning Election Materials and Documents to the Returning Officer

At the conclusion of the judicial recount, the judge shall return to the returning officer the election documents or other election materials brought for the purpose of the recount and deliver to him or her the reports created in the course of the recount. [ss. 308(c) and (d) of the Act]

6.5. The Result of Voting Form

The addition, in 2015, of Schedule 4 to the Act and the forms specified in those provisions mean that the forms and results that were completed and recorded on election night—namely, the results recorded on the Result of Voting form, reproduced in Appendix D (Form 6) of this handbook—are left as they were. New forms, created expressly to record the recount results and outcome, are to be completed. This is a change from procedures in earlier recounts.

6.6 Completing the Return of the Writ

Without delay after receiving the signed Certificate of the Judge (Results of Voting after a Judicial Recount) from the judge following the completion of a recount, the returning officer 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 of election. [s. 313 of the Act] The Return of the Writis reproduced in Appendix D (Form 8) of this handbook.

If there is an equality of votes between the candidates with the largest number of votes, the returning officer shall indicate that fact on the Return of the Writ. [s. 313(2) of the Act]

The returning officer must forward a copy of the Return of the Writ to each candidate. [s. 315(1) of the Act]

Footnote 35 This was the solution to the ERS technical difficulties that was adopted during the 2015 judicial recount in the electoral district of Desnethé–Missinippi–Churchill River.