Court Information

Date: June 18, 2018

Court: Ontario Court of Justice

Location: Brampton, Ontario

Before: Justice Hafeez S. Amarshi

Heard: June 14, 2018

Written Judgment: June 18, 2018

Parties

Between:

Harjit Jaswal, Applicant

And:

Greg Essensa, Chief Electoral Officer of Ontario, Malcolm Scott Ching, Returning Officer for the Electoral District of Brampton Centre, Linda Galloway, Election Clerk for the Electoral District of Brampton Centre, Andrew R. Hosie, Sadafar Hussain, Mehdi Pakzad, William Oprel, Binder Singh, Sara Singh and Laila Sarah Zarrabi Yan, Respondents

Counsel

• J. Etienne and N. Waheed, Counsel for the Applicant
• J. Ayres and S. Lemke, Counsel for Elections Ontario
• M. Atkinson, Counsel for the Ontario New Democratic Party

Application

APPLICATION UNDER sections 69 and 71 of the Election Act, R.S.O. 1990, c. E.6, as amended.

Decision on Application for Judicial Recount

H.S. AMARSHI J.

Background

[1] On June 7, 2018, a provincial election was held in Ontario. In Brampton Centre there were seven candidates on the ballot.

[2] After the polls closed on election night, Sara Singh, a candidate for the Ontario New Democratic Party was elected as the winner of the riding with a vote total of 12,892. Harjit Jaswal, a candidate for the Progressive Conservative Party of Ontario received 12,803 votes. The margin was slim – 89 votes separated both candidates. The total number of valid votes cast in Brampton Centre was 33,599.

[3] On June 9, 2018, Elections Ontario officially certified the provincial election results, including the result in Brampton Centre.

[4] The Election Act, R.S.O. 1990, c. E.6, provides that a candidate may bring an application for a recount. That application must be brought and heard within four days of the official tabulation, excluding a Sunday. [1]

[5] The recount application must be brought in front of a judge of the Ontario Court of Justice in the jurisdiction where the vote has taken place. [2]

[6] In the early afternoon of June 14, 2018, I was alerted by the Trial Co-ordinator in Brampton that an application under sections 69 and 71 of the Election Act would be brought by the applicant Harjit Jaswal. The application was assigned to my court.

[7] I received the applicant's materials at 4:30 p.m. and I commenced court at 5 p.m. In attendance were counsel for Elections Ontario, James Ayers and Scott Lemke. Given the late notice of the application, they had not prepared responding materials and sought time to commission affidavits from Malcolm Scott Ching, the Returning Officer for Brampton Centre, and Linda Galloway, the Election Clerk for Brampton Centre.

[8] Dhananjai Kohli, a staff member at the Ontario New Democratic Party, was also in attendance. Mr. Kohli addressed the court and requested the matter be adjourned to the next day in order for Ms. Singh to retain counsel and for an opportunity to formally respond to the applicant's materials.

[9] Although I was sympathetic to the concerns raised by Mr. Kohli, a plain reading of the relevant section of the Election Act makes it clear that a hearing must not only be commenced within four days of the official tabulation, but a decision also rendered by the end of the fourth day.

[10] In this present case, the fourth day would end at midnight on June 14, 2018 at which point the application would be mute. Accordingly I denied the request. There was a sufficient public interest given the closeness of the final vote that the matter should be heard before the statutorily imposed deadline elapsed.

[11] Given that Ms. Singh would be directly impacted by a decision to order a recount in Brampton Centre, I advised Mr. Kohli that I would be willing to hear submissions, even absent responding materials, at any point over the course of the evening.

[12] Fortunately, I was advised after a short recess that the Ontario New Democratic Party had been able to retain counsel on very short notice. In the circumstances, I agreed that the matter would commence once all of the parties that had an interest in the application could be present in the courtroom.

[13] Argument on the application did not commence until 7:30 p.m. and concluded at 11 p.m. just prior to the statutory deadline. I rendered short oral reasons just after 11:30 p.m. I indicated that written reasons were to follow shortly thereafter.

[14] This was hardly an ideal situation and one that could have been avoided had the application been brought in a timely manner. Mr. Jaswal was aware of the result on election night. He would have recognized that the slim margin between candidates would potentially give rise to an application for a recount. Mr. Jaswal waited until the evening of June 13 to retain counsel. What followed could only be described as a mad scramble by multiple parties to retain counsel, prepare materials and attend for the application. There is an inherent unfairness in forcing responding parties to act on limited notice, especially in a matter that engages the broad public interest such as this case.

[15] I appreciate these applications are rare, but this is hardly a template example of how these applications are to be brought before a court. Section 69 of the Election Act requires recount applications be made "forthwith." It is arguable that the applicant failed to meet this standard. It lies within the discretion of the hearing judge to summarily dismiss such applications if it does not meet this threshold for immediacy or without delay, notwithstanding the fact that an application has been brought within four days of the official tabulation.

[16] Although the application was heard under less than ideal circumstances and with a looming deadline, I want to commend counsel for the Applicant and Respondents, for their professionalism and the thoughtful manner in which they conducted this hearing. It was clear in the submissions that all parties were deeply respectful of the democratic process and had a meaningful desire to ensure the public's will was accurately reflected in Brampton Centre.

[17] The court clerk and reporter are also to be commended for their hard work and diligence in what turned out to be a long evening.

Relevant Legal Principles

[18] In Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519, at paragraph 1, Chief Justice McLachlin observes, "The right of every citizen to vote, guaranteed by s. 3 of the Canadian Charter of Rights and Freedoms, lies at the heart of Canadian democracy."

[19] As a corollary to that statement, voters must have confidence in the final result. Specifically, that the democratic will is fairly and accurately reflected in the legislature and that the candidate garnering the highest number of votes is the one who is duly elected.

[20] The Election Act addresses circumstances where a party raises a concern over the accuracy of the vote and provides that a candidate may bring an application for a judicial recount. That application must be brought and heard within four days of the official tabulation, excluding a Sunday.

[21] The relevant provision of the Election Act states:

Section 71(1)

For the purpose of determining the candidate who obtained the highest number of votes and within the four days, Sunday being excluded, following the official tabulation made by the returning officer, a judge may appoint a time and place to recount the votes cast at the election in the electoral district upon the application of a candidate or elector if it is made to appear by aff