Judicial recounts: an inside view.

AuthorDuggan, James R.K.
PositionReport

Canada's 41st general election was held on May 2, 2011. There were bitter disputes over the results in some ridings after certain candidates won their seats with razorthin margins. To determine once and for all who won and who lost, judicial recounts were ordered in four ridings: Montmagny-L'Islet--Kamouraska--Riviere-du-Loup, Etobicoke Centre, Nipissing--Timiskaming, and Winnipeg Centre. This article looks at the history of judicial recounts, the process that was used to examine the ballots in Montmagny--L'Islet--Kamouraska--Riviere-du-Loup, and Mr. Justice Gilles Blanchet's rulings on the disputed ballots.

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Judicial recounts involve having a judge review the ballots to determine the election results in a riding. The process first appeared in federal electoral legislation in 1878 (1) shortly following the introduction of the secret ballot. (2)

The House of Commons Debates reveal little except that Hector Cameron, Member for Victoria North, once called for the right to a recount to be limited to cases where the margin was 50 or fewer votes; he pointed out that in Ontario, the right to a recount was limited to cases where the margin was fewer than 30. (3)

However, nothing came of it, and for almost 125 years judges were at liberty to order a judicial recount on the affidavit of a credible individual that the returning officer or deputy returning officer improperly counted or rejected any ballot papers or improperly added up the votes. (4) This changed in 2000 with the passage of new electoral legislation. (5)

There is now an automatic judicial recount "[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...." (6) In that case, it is up to the returning officer, within four days after the results are validated, to make a request to a judge who sits in the electoral district where the results are validated. (7)

As well, when the margin between the top two candidates is equal to or greater than the margin resulting in an automatic recount, any elector may apply to a judge for a judicial recount. To be accepted, the elector must satisfy the judge, through an affidavit of a credible witness, that

  1. 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

  2. the returning officer has incorrectly added up the results set out in the statements of the vote. (8)

Automatic or not, a judicial recount may take one of the following forms, depending on the conclusions sought by the applicant: either the judge examines, allocates or dismisses, if necessary, each ballot and counts them to determine the election results in a riding; or the judge adds up the number of votes again based only on the statements provided by the deputy returning officers. (9)

When the judge must examine and count each ballot, both valid and rejected ballots, the judicial recount may be time-consuming and span several days. For example, in 1963 it took Justice Paul Sainte-Marie four days to examine the 17,028 ballots cast in the federal riding of Pontiac-Temiscamingue. (10) Following the Quebec provincial election of November 15, 1976, the judicial recount of the 30,536 ballots in the riding of Hull began on November 22; since it was entangled with several other motions before the court, (11) the recount was not completed until December 22. (12)

During the judicial recount in the federal riding of Montmagny--L'Islet--Kamouraska--Riviere-du-Loup in the wake of the election of May 2, 2011, everyone wanted it to be completed as early as possible. The judge had a full agenda that did not allow him, in the short term, to spend more than three days on the recount; the Conservative candidate hoped to overturn the five-ballot margin between him and his main challenger so he could potentially be given a ministerial portfolio; (13) and the NDP candidate was eager to consolidate his victory.

The number of ballots to recount made it impossible for the judge to personally count, following the customary procedure, all 48,225 ballots within a very short timeframe. Spending an average of five seconds to unfold each ballot, examine it and show it to the candidates' officials would have...

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