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179-G-2019-05 – Preservation of the right to vote of an elector to whom an election officer provided erroneous information

Canada Elections Act

43rd General Election

Instructions for the preservation of the right to vote of an elector who marked a special ballot on the basis of erroneous information given to the elector by an election officer and for the setting aside of that special ballot

Date of issue: September 24, 2019

Number: 179-G-2019-05

Whereas Divisions 2, 3, 4 and 5 of Part 11 of the Canada Elections Act (“the Act”) each permit eligible electors to make an application for registration and special ballot and to vote by special ballot;

Whereas sections 213, 227, 238 and 258 of the Act provide that electors voting by special ballot shall vote by writing on the ballot the name of the candidate of their choice and, where two or more candidates have the same name, the candidate’s political affiliation;

Whereas an important risk exists that the special ballot marked by an elector on the basis of erroneous information provided to that elector by an election officer or a unit election officer be rejected during the counting of the votes;

Whereas no provision in the Act allows for an inner envelope to be set aside and for an elector to be given a new special ballot where it is found that erroneous information was provided to the elector by an election officer or a unit election officer;

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 a general election, when an election officer or a unit election officer provides an elector with erroneous information, which may have caused the elector to improperly mark his or her special ballot.

2. Where he or she determines that the circumstances described at paragraph 1 apply to an elector, the special voting rules administrator or the returning officer shall, without delay:

(a) advise the elector that:

(i) erroneous information could have been given to the elector by an election officer or a unit election officer; and

(ii) the elector’s special ballot could be rejected during the counting of the votes, should the special ballot have been marked by the elector on the basis of such erroneous information; and

(b) ask the elector whether he or she wishes to void his or her special ballot and exercise again his or her right to vote.

3. Where the affected elector chooses to void his or her special ballot and vote again, the special voting rules administrator shall, without delay:

(a) ask the elector to make a choice among the following voting opportunities:

(i) exercising his or her right to vote by special ballot;

(ii) exercising his or her right to vote at the advance polling station established for the advance polling district in which his or her place of ordinary residence is located, where this voting opportunity is still available; or

(iii) exercising his or her right to vote at the polling station established for the polling division in which his or her place of ordinary residence is located;

(b) take the following measures:

(i) accept the application for registration and special ballot made by the elector and provide the elector with a special ballot, where the elector makes the choice provided by subparagraph 3(a)(i) of these instructions; or

(ii) reject the application for registration and special ballot made by the elector and ensure that the indication to the effect that the elector has received a special ballot is removed from the list of electors for the polling division of the elector’s place of ordinary residence, where the elector makes the choice provided by subparagraph 3(a)(ii) or (iii) of these instructions; and

(c) instruct the special ballot officers to set aside unopened the inner envelope affected by the error that occurred in relation to that elector and to follow the procedure described in subsection 267(3) of the Act.

4. Where the affected elector chooses to void his or her special ballot and vote again, the returning officer shall, without delay:

(a) advise the special voting rules administrator that an error was discovered and of the choice made by the elector;

(b) take the measures described at paragraphs 3(a) and (b) of these instructions;

(c) instruct the election officer referred to in section 273 of the Act to set aside unopened the inner envelope affected by the error that occurred in relation to that elector and to follow the procedure described in subsection 277(3) of the Act; and

(d) advise the special voting rules administrator of the measures taken in order to preserve the elector’s right to vote.

5. Where the affected elector does not wish to vote again or cannot be reached, the returning officer shall, without delay, advise the special voting rules administrator that an error was discovered and, as the case may be, of the choice made by the elector.

6. These instructions supersede the following instructions: “Instructions of the Chief Electoral Officer issued pursuant to section 179 of the Canada Elections Act for the purpose of setting aside the outer envelope of a special ballot marked by an elector on the basis of erroneous information given to the elector by an election officer and providing a new special ballot to the elector”, issued on September 22, 2015.

(Original Signed)

Stéphane Perrault
Chief Electoral Officer