COURT FILE NO.: CV-21-00669589-0000
DATE: 20211026
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Davenport (Electoral District)
IN THE MATTER OF THE CANADA ELECTIONS ACT, S.C. 2000, C. 9
IN THE MATTER OF A JUDICIAL RECOUNT ARISING OUT OF THE 44^TH^ GENERAL ELECTION IN THE ELECTORAL DISTRICT OF DAVENPORT ON SEPTEMBER 20, 2021
BEFORE: VERMETTE J.
COUNSEL: Meg Atkinson and Vinidhra Vaitheeswaran, for Candidate Alejandra Bravo
Jack Siegel, Jessica Cardill and Milton Chan, for Candidate Julie Dzerowicz
Jean-François Morin and Edwidge Gedna (articling student), for Elections Canada
REPORT ON JUDICIAL RECOUNT
[1] This is a report and summary of rulings for the judicial recount held on October 12-15, 2021, pursuant to the Canada Elections Act, S.C. 2000, c. 9 (“Act”).
[2] The 44^th^ general federal election took place on September 20, 2021. On September 27, 2021, the returning officer for the electoral district of Davenport in Toronto (“Davenport”) certified that the following were the validated results for all candidates in the electoral district:
| CANDIDATE | PARTY | VOTES |
|---|---|---|
| Julie Dzerowicz | Liberal | 19,930 |
| Alejandra Bravo | NDP-New Democratic Party | 19,854 |
| Jenny Kalimbet | Conservative | 4,774 |
| Tara Dos Remedios | People’s Party – PPC | 1,499 |
| Adrian Currie | Green Party | 1,087 |
| Troy Young | Independent | 86 |
| Chai Kalevar | Independent | 77 |
[3] Thus, Candidate Dzerowicz obtained the most votes, and Candidate Bravo came second by 76 votes.
[4] On October 1, 2021, Candidate Bravo applied for a judicial recount of all the ballots returned by election officers or the Chief Electoral Officer in Davenport pursuant to section 301 of the Act (“Application”). The Application was heard on October 5, 2021. At the end of the hearing, I granted Candidate Bravo’s Application, with reasons to follow. My reasons were released on October 7, 2021: see Bravo v. Chief Electoral Officer, 2021 ONSC 6707.
[5] On October 6, 2021, after a short telephone case conference with counsel, I ordered, on consent of the parties, that the recount take place at 501 Alliance Avenue, Toronto, Ontario starting on Tuesday, October 12, 2021 at 9 a.m. so as to give sufficient time to the parties to recruit the necessary staff and volunteers and make all the necessary arrangements.
[6] Notice of the time and place fixed for the judicial recount was provided to all the candidates, in accordance with subsection 301(4) of the Act. However, only Candidate Bravo and Candidate Dzerowicz participated in the recount.
Meetings in preparation for the judicial recount
[7] After the short telephone case conference of October 6, 2021 referred to above, I held three meetings (via Zoom) with counsel in preparation for the recount: one on October 6, 2021 at 3:30 p.m. for approximately 1.5 hours; one on October 7, 2021 at 3 p.m. for approximately one hour; and one on October 8, 2021 at 12:30 p.m. for approximately two hours. In addition, counsel and I participated in a site visit on October 11, 2021 at 4 p.m.
[8] The following points, among others, were discussed during these meetings: access to the recount venue; organization and layout of the space; safety protocol for COVID-19; security and security protocols (including in the event of a fire alarm); management of breaks and lunchtime; presence of the media; solemn declarations and training of Elections Canada staff and candidates’ representatives; replacements during the recount process; flexibility in the daily schedule and in the distribution of ballot boxes; photocopies of disputed ballots; timing of submissions regarding disputed ballots; and various ballot-related issues.
[9] The starting point for our discussions was Schedule 4 of the Act as section 304(3) of the Act provides that the procedure set out in Schedule 4 applies to a judicial recount conducted by counting the valid ballots or all of the ballots returned by election officers or the Chief Electoral Officer. However, section 23 of Schedule 4 states that the judge may alter the procedures after giving the parties and the returning officer the opportunity to make submissions. Pursuant to that section, I altered the procedure set out in section 1(c) of Schedule 4 on consent to allow the attendance of two legal counsel for each candidate instead of only one.
[10] The pre-recount meetings with counsel were very productive and useful. Counsel for Elections Canada provided crucial assistance, information and updates throughout the planning period, and all counsel raised important points and made helpful suggestions. The discussion allowed for the clarification of expectations and a smoother process.
The recount environment
[11] The recount took place in a very large, industrial-type and open-space room of about 22,000 square feet. However, we only had access to approximately 15,000 square feet. Partitions were used to create separate spaces for the ballot boxes that had not been examined, the completed ballot boxes for which there was no disputed ballot, and the completed ballot boxes for which there were disputed ballots. In addition, the candidates’ teams had access to separate spaces to meet and have lunch.
[12] There were 24 recount teams, each composed of four people: two members appointed by the returning officer – a handler and a recorder – and one representative appointed by each of the two candidates who participated in the recount. The teams were sitting around two large rectangular tables that were juxtaposed, and were separated from each other by empty tables and/or plexiglass barriers. The teams were spread out over four rows, with wide aisles between the rows.
[13] In addition to the members of the recount teams, numerous additional staff were recruited by the returning officer to assist with the distribution of ballot boxes and supplies, to photocopy the Recount Ballot Box Reports and disputed ballots after ballot boxes were returned, and to provide training and assistance to the recount teams, among other things.
[14] Security agents were present throughout the recount. There was at least one security agent present at all times, 24 hours/day.
[15] The judge’s table was located at the front of the room, facing the recount teams. From this location, I could see the entire room. Counsel for Elections Canada also had a table at the front of the room. Counsel for Candidate Bravo had a table on the left-side of the room, and counsel for Candidate Dzerowicz had a table on the right-side of the room. The candidates’ representatives referred to in section 1(b) of Schedule 4 (two per candidate) were sitting with their candidate’s counsel.
[16] We also had access to a small boardroom in a different unit on the same floor of the building. Counsel and I went to that boardroom each time that counsel needed to make submissions and a ruling was required. This allowed for submissions to be made in a calmer environment, with better acoustics and without interruptions. A court reporter and a registrar were present in the boardroom during the submissions, and the Statements of the Vote for the relevant polling stations that were referred to by counsel during the submissions were marked as exhibits.
Start of the judicial recount
[17] Each person appointed by the returning officer or by one of the candidates to participate in the recount had to make a solemn declaration to respect certain obligations, including the following: to perform their duties according to the law; to maintain and aid in maintaining the secrecy of the vote; not to use or disclose the personal or other information to which they may have access in the performance of their services for purposes other than those related to the duties for which they were appointed; to respect the confidentiality and security guidelines issued by the Chief Electoral Officer; and not to take any photographs or make any audio or video recordings of the recount proceedings. It was agreed during the pre-recount meetings that two of the forms included in Elections Canada’s Judicial Recount Handbook – “Appointment and Solemn Declaration (recount handler, recorder and support staff)” and “Authorization of a Candidate’s Representative – Recount” – would be used to have all the relevant persons make the required solemn declaration. It was also agreed that these forms were to be completed and commissioned by 9 a.m. on Tuesday (i.e. before the start of the recount), and that the returning officer (or his designated staff) would provide everyone with an identity badge in exchange for a duly completed and signed form.
[18] Everyone also had to answer COVID-19 screening questions on a form before entering the recount room. This requirement, as well as the obligation to wear a mask, applied every day, not only on the first day of the recount.
[19] The candidates’ teams met in separate spaces starting around 8:15 a.m. or 8:30 a.m., but the meetings (including the commissioning of the forms) took more time than expected. By approximately 9:40 a.m., the members of the recount teams were at their respective tables. At that time, I briefly welcomed those in attendance and thanked them for their participation in this important process. I reminded them that the recount was a court-supervised process and that they had to conduct themselves accordingly. I also reminded them of the obligations set out in the forms that they had signed earlier that morning.
[20] From approximately 9:45 to 10:20 a.m., an Elections Canada employee conducted a training session for the recount teams. After a short break, ballot boxes started to be distributed to the recount teams, and the counting of the ballots began.
[21] No member of the media attended or sought to attend the judicial recount at any time.
Conduct of the recount
[22] The procedures set out in Schedule 4 of the Act were generally followed during the recount.
[23] The recount teams had numerous questions and inquiries throughout the recount, but especially on the first day. Counsel for Elections Canada and the candidates, as well as Elections Canada staff, were very busy answering the teams’ questions and helping them resolve issues.
[24] A few times during the recount, counsel came to the judge’s table to discuss the manner in which certain ballot boxes should be distributed. For instance, some polling stations were merged on the day of the election, and it was agreed that the ballot boxes for such polling stations should be assigned together to the same recount team. The distribution of ballot boxes that were anticipated to be more “problematic” (based on the evidence adduced at the hearing of the Application) was also discussed. Agreement was quickly reached every time this type of issue was raised.
[25] Each time a recount team completed the counting of the ballots in a ballot box, the recorder prepared a Recount Ballot Box Report which was signed by the handler and the recorder, and initialed by the two candidates’ representatives on the team. The ballot box and the accompanying Recount Ballot Box Report were then brought to the judge’s table. I reviewed each Recount Ballot Box Report with counsel (including the list of disputed ballots, if any), side by side with the original Statement of the Vote so as to see any differences in the counts. After this review, if there was no disputed ballot for that ballot box, I signed the Recount Ballot Box Report and, after the report was photocopied, the ballot box was brought to the section of the room for completed ballot boxes for which there was no disputed ballot. If the ballot box contained one or more disputed ballots, I did not sign the form. The Recount Ballot Box Report and the disputed ballots were photocopied, and the ballot box was brought to the section of the room for completed ballot boxes for which there were disputed ballots. The great majority of ballot boxes had one or more disputed ballots.
[26] As we reviewed the Recount Ballot Box Reports, counsel and I realized that some of the recount teams may not have fully understood how certain sections of the Report were to be completed. Counsel for Elections Canada periodically made “public service announcements” throughout the recount in order to provide clarifications and information to the recount teams.
[27] Because counsel were very busy answering questions throughout the day, there was not enough time to review all the Recount Ballot Box Reports while the recount teams were at work, and the ballot boxes accumulated on and around the judge’s table during the day. Counsel and I completed our review of all the outstanding Recount Ballot Box Reports at the end of each day, up until approximately 7 p.m. on both the first and second day of the recount. Some Elections Canada staff obligingly agreed to stay later to photocopy the Reports and disputed ballots associated with the ballot boxes that were reviewed at the end of the day.
[28] On the first, second and third day of the recount, I was asked to order that certain envelopes containing spoiled ballots and unused ballots be opened. I ruled on these requests extemporaneously, immediately after hearing counsel’s submissions. My rulings are set out in more detail below.
[29] During the pre-recount meetings, I held that there would be no submissions regarding disputed ballots on the first day of the recount, but that I would discuss with counsel on the morning of the second day to determine whether, in light of the circumstances at that time, it would make sense to hear submissions on disputed ballots on that day or later during the recount or only after all the ballot boxes had been completed. Ultimately, given how busy counsel were answering questions from the recount teams, it became clear to me that there was not going to be sufficient time available to deal with the disputed ballots while the full complement of recount teams was present. I also wanted to give the candidates’ counsel some time to review and discuss the disputed ballots among themselves before hearing submissions.
[30] The counting of the ballots was completed by the end of the second day, except for approximately 10-15 ballot boxes. These remaining boxes had been identified by counsel for the candidates as ballot boxes with respect to which they might ask for certain relief, i.e. an order that the envelopes for spoiled ballots and/or unused ballots be opened. It was agreed that these requests and related submissions would be made the following morning, and that a smaller number of recount teams would be present on the third day to complete the counting of the ballots in these ballot boxes after the rulings.
[31] The counting of the ballots and the review of the remaining Recount Ballot Box Reports were completed at around lunch time on the third day. One of the last ballot boxes to be brought to the judge’s table had a very high number of disputed ballots, i.e. more than 50. Since the recount teams were done and there was time, counsel for the candidates proposed to review the disputed ballots together with counsel for Elections Canada before the ballot box was finalized. They did so and, as a result of this exercise, the number of disputed ballots for this ballot box decreased to only one.
[32] After the ballot boxes were completed, it was agreed that we would adjourn until the following morning so as to give counsel some time to discuss the disputed ballots and consider their respective positions. Among other things, counsel were to discuss whether they could come to an agreement on some of the disputed ballots and/or the grouping of the disputed ballots into categories in order to streamline the submissions. The submissions on disputed ballots were set to begin at 9 a.m. on October 15, 2021, i.e. the fourth day of the recount.
[33] At approximately 9:45 p.m. on October 14, 2021, counsel for Candidate Bravo advised by e-mail that Candidate Bravo wished to terminate the judicial recount, pursuant to section 307 of the Act. The following morning, I met with counsel and the recount was formally terminated. A timetable for the exchange of costs submissions was discussed and agreed upon. As a result of the termination of the recount, the validated results for all candidates in Davenport remained unaffected. The returning officer signed the Return of the Writ certifying that Candidate Dzerowicz was the candidate who had received the largest number of votes cast and had been duly elected.
Rulings
[34] As stated above, my rulings during the recount were extemporaneous ones, with brief oral reasons. They are summarized below in expanded and edited form (with the benefit of transcripts that were subsequently prepared).
[35] All of the rulings that I was required to make related to the opening of envelopes containing spoiled ballots and unused ballots.
[36] Section 11 of Schedule 4 to the Act reads as follows:
11 (1) The recount team shall examine the envelopes containing spoiled ballots and unused ballots without opening them.
(2) If there is any dispute concerning one of those envelopes or a request that one of them be opened, the question shall be determined by the judge.
[37] While there are some cases dealing with requests to open spoiled ballot envelopes, I was not referred to any cases where there were requests to open unused ballot envelopes.
[38] Arguments advanced in support of past requests to open spoiled ballot envelopes include the following:
a. possible confusion between spoiled and rejected ballots (see, e.g., Judicial Recount Arising out of the 39^th^ General Election in the Electoral District of Parry Sound (Re), 2006 CanLII 6914 (Ont. S.C.J.));
b. the fact that some ballots may be missing (see, e.g., In the Matter of a Judicial Recount Arising out of the 40^th^ General Election in the Electoral District of Kitchener-Waterloo Held on October 14, 2008 (Re), 2008 CanLII 64382 at para. 38 (Ont. S.C.J.) and In the Matter of a Judicial Recount Arising out of the 40^th^ General Election in the Electoral District of Brampton West on October 14, 2008 (Re), unreported, at para. 11 (Ont. S.C.J. – Daley J.)); and
c. an unusually high number of spoiled ballots recorded on the Statement of the Vote (see, e.g., In the Matter of a Judicial Recount Arising out of the 40^th^ General Election in the Electoral District of Brampton West on October 14, 2008 (Re), unreported, at para. 10 (Ont. S.C.J. – Daley J.)).
[39] It is also relevant to the discussion below to refer to subsection 304(2) of the Act which reads as follows:
If a recount of all of the ballots returned is required, the judge may open the sealed envelopes that contain the used and counted, unused, rejected and spoiled ballots. The judge shall not open any envelopes that appear to contain other documents or refer to any other election documents.
1. Polls 25 and 36
[40] Candidate Bravo requested that the envelopes containing spoiled ballots and unused ballots be opened for polling station 25, and that the envelope containing unused ballots be opened for polling station 36. These requests were opposed in part by Candidate Dzerowicz.
a. Factual background
[41] Poll 25: The Statement of the Vote for this polling station indicated that there were nine rejected ballots, nine spoiled ballots and no unused ballots. However: (1) the rejected ballot envelope in the ballot box was empty, and the number zero was written outside the envelope; (2) the number ten (instead of nine) was written outside of the spoiled ballot envelope; and (3) the unused ballot envelope clearly contained ballots, although no number was reported on the envelope. The recount team had also counted additional votes compared to the numbers reported in the Statement of the Vote.
[42] Poll 36: When the ballot box was opened, loose ballot booklets were found in the box (i.e. they were not in the unused ballot envelope). These booklets appeared to have been either partially or fully used. In addition, the ballot box contained a sealed unused ballot envelope which appeared to contain ballots, but the number of unused ballots was not indicated on the envelope.
b. Counsel’s submissions
[43] With respect to poll 25, counsel for Candidate Bravo submitted that there was evidence of confusion and miscounting, as well as concern around the original numbers provided on the Statement of the Vote. With respect to poll 36, she pointed to the manifest irregularity of having loose ballot booklets and argued that the Act contemplates that all ballots should be counted and accounted for (see subsection 283(3)(d) of the Act).
[44] Counsel for Candidate Dzerowicz did not take issue with opening the spoiled ballot envelope for poll 25 given the apparent confusion between spoiled and rejected ballots. However, he stressed that determining what to do with these ballots once the envelope was opened could be a difficult question if they were not clearly, on their face, spoiled ballots. He expressed serious concerns about counting such ballots and, among other things, he referred to the risk of counting two votes for the same elector given that it is possible for an elector who made an error marking a ballot to have the ballot treated as a spoiled ballot and obtain a replacement ballot.
[45] With respect to unused ballot envelopes, counsel for Candidate Dzerowicz submitted that opening such envelopes would serve no purpose as there was no remedy that could be granted on a judicial recount if numbers did not match or balance perfectly. He further submitted that a recount should not become a fishing expedition in search of grounds for a contested election application.
c. Rulings
[46] Given the potential confusion between rejected and spoiled ballots and the mistakes in the recorded numbers, I ordered that the spoiled ballot envelope for polling station 25 be opened and that counsel review the ballots inside with the recount team to see whether a consensus could be reached as to whether the ballots in the envelope were, in fact, spoiled ballots. I held that I would hear further submissions regarding the treatment of these ballots if there was no consensus.
[47] Ultimately, after reviewing the ballots, counsel agreed that they were spoiled ballots and there was no need for further submissions on this issue.
[48] I also ordered that the unused ballot envelope for polling station 25 be opened and that the unused ballots be counted because I did not want to sign a Recount Ballot Box Report that was, to my knowledge, incorrect. If the unused ballot envelope was not opened and the number of unused ballots indicated on the Statement of the Vote (zero) was simply re-transcribed on the Recount Ballot Box Report, the Report would be factually incorrect given that the unused ballot envelope was not empty and visibly contained ballots.
[49] Finally, I ordered that the unused ballot envelope for polling station 36 be opened as well given the loose ballot booklets found in the ballot box and the uncertainty as to whether they were counted or not. It was agreed by all counsel that the loose ballot books should be put in a separate unused ballot envelope after being counted.
2. Polls 86 and 109
[50] Candidate Bravo requested that the envelopes containing spoiled ballots be opened for both polling stations 86 and 109. These requests were opposed in part by Candidate Dzerowicz.
a. Factual background
[51] Poll 86: On the Statement of the Vote for this polling station, the number two was originally written as the number of rejected ballots, but this number was crossed out and replaced by a zero. The rejected ballot envelope did not contain any ballot and had the number zero on it. The number indicated on the Statement of the Vote for spoiled ballots was two, and the same number was written outside of the spoiled ballot envelope. On a separate document called “Copy of Results for Candidates”, the number indicated for rejected ballots was two. However, this document does not have a space to indicate the number of spoiled ballots and a handwritten note was added: “Spoiled written on statement.” The “Copy of Results for Candidate” was prepared by the election officer who acted as deputy returning officer at the polling station, and would have been prepared immediately after having completed the Statement of the Vote so that candidates or their representatives could leave with it.
[52] Poll 109: The Statement of the Vote for this polling station indicated that there were two rejected ballots and no spoiled ballots. However, the numbers were inverted on the envelopes: the rejected ballot envelope had zero written on it, and the spoiled ballot envelope had a two on it and appeared to contain something.
b. Counsel’s submissions
[53] With respect to poll 86, counsel for Candidate Bravo argued that, based on the document “Copy of Results for Candidates”, there appeared to have been confusion between rejected and spoiled ballots. The discrepancy between this document and the Statement of the Vote raised the concern that rejected ballots were erroneously treated as spoiled ballots. With respect to poll 109, counsel for Candidate Bravo submitted that the envelopes for rejected ballots and spoiled ballots were mixed up at some point and that the spoiled ballot envelope likely contained rejected ballots instead of spoiled ballots.
[54] With respect to poll 86, counsel for Candidate Dzerowicz pointed out that the document “Copy of Results for Candidates” was not an official election document that the Court normally reviews on a judicial recount. He also reiterated the concerns that he had raised the day before in relation to poll 25 with respect to counting ballots contained in a spoiled ballot envelope. With respect to poll 109, he argued that there was a presumption of regularity associated with a Statement of the Vote, i.e. that the Statement of the Vote was more likely than not to be correct. Based on the Statement of the Vote, there were two rejected ballots that were missing. As a result, he submitted that the spoiled ballot envelope should be opened, but he raised again the difficulty of determining the treatment of these ballots once the envelope was opened if they were not clearly, on their face, spoiled ballots.
[55] Counsel for Elections Canada provided some context regarding the document “Copy of Results for Candidates”. He stated that such a document could have been received by a candidate on election night and that it did not meet the definition of “election documents” in the Act. Therefore, the consideration of this document was not, strictly speaking, prohibited by subsection 304(2) of the Act.
c. Rulings
[56] I declined to authorize the opening of the spoiled ballot envelope for polling station 86. The numbers on the relevant envelopes were consistent with the numbers indicated on the Statement of the Vote. I did not have to determine whether any consideration or weight should be given to the document “Copy of Results for Candidates” because, in light of the handwritten note on that document, I concluded that it did not evidence confusion between spoiled and rejected ballots on the Statement of the Vote. The handwritten note showed, in my view, that the person who completed the form (who also signed the Statement of the Vote) was referring to spoiled ballots, and may have been confused by the fact that there was no space to indicate the number of spoiled ballots on the “Copy of Results for Candidates” form. However, this did not impugn the accuracy of the Statement of the Vote given the explanatory note.
[57] Because of the potential confusion between rejected and spoiled ballots, I ordered that the spoiled ballot envelope for polling station 109 be opened and that counsel review the ballots inside with the recount team to see whether a consensus could be reached as to whether the ballots in the envelope were, in fact, spoiled ballots. I held that I would hear further submissions regarding the treatment of these ballots if there was no consensus.
[58] After reviewing the ballots in the spoiled ballot envelope, counsel agreed that they should not be counted and there was no need for further submissions on this issue.
3. Poll 107
[59] Candidate Bravo requested that the envelope containing unused ballots be opened for polling station 107. This request was opposed by Candidate Dzerowicz.
a. Factual background
[60] The Statement of the Vote for polling station 107 reported “nil” for rejected ballots, spoiled ballots and unused ballots. The rejected ballot and spoiled ballot envelopes both had the number zero on them. However, the unused ballot envelope had the number 327 on it. Aside from the number of unused ballots, the numbers indicated on the Statement of the Vote were confirmed by the recount team.
b. Counsel’s submissions
[61] Counsel for Candidate Bravo stated that if one added the number indicated on the unused ballot envelope (327) and the number of votes cast indicated on the Statement of the Vote (177), the total result was 504, which should correspond to the number of ballots supplied. She pointed out that this “inferred” number of ballots supplied (504) was an unusual number because, based on the evidence given by the returning officer in the Application, the number of ballots supplied should normally be a multiple of 50 because ballot booklets contain 50 ballots. Counsel for Candidate Bravo stated that the request to open the unused ballot envelope was not to look for ballots cast, but to satisfy themselves that there were, in fact, 327 ballots in the unused ballot envelope and that there was no counting error. She referred to subsection 283(3)(d) of the Act and the need to ascertain that all ballots that were provided by the returning officer have been accounted for.
[62] Counsel for Candidate Dzerowicz submitted that while, in theory, ballots may be supplied in booklets of 50, this may or may not actually be the case for a specific polling station, and this is insufficient to warrant going on a fishing expedition, as he argued in relation to polls 25 and 36.
c. Ruling
[63] I declined to authorize the opening of the unused ballot envelope for polling station 107 and stated that the recount team should use the number indicated on the unused ballot envelope for the purpose of the Recount Ballot Box Report. In my view, there was insufficient evidence that the number written on the unused ballot envelope was unreliable. Among other things, all the other numbers on the Statement of the Vote remained the same after the recount team’s review. In the particular circumstances of this poll and in the absence of any other issues, the fact that the “inferred” number of ballots supplied was not a multiple of 50 was not a sufficient justification to set aside the standard procedure in Schedule 4 of the Act to the effect that envelopes containing unused ballots should not be opened in the normal course.
4. Poll 112
[64] Candidate Bravo requested that the envelopes containing spoiled and unused ballots be opened for polling station 112. This request was opposed by Candidate Dzerowicz.
a. Factual background
[65] The ballot box for polling station 112 contained two unused ballot envelopes. One of the envelopes had the number 332 on it, but it did not have a polling station number on it. The second envelope was marked for polling station 112, and the number written on it indicated that it contained 61 unused ballots. However, the view of at least some of the members of the recount team was that it appeared that there were more than 61 ballots in the envelope. The number indicated on the Statement of the Vote for unused ballots was 303.
[66] The Statement of the Vote also reported one spoiled ballot. The spoiled ballot envelope used to have the number one written on it, but the number was scratched out almost completely, and no other number was written. When asked by counsel, one of the election officers on the recount team said that he believed that there was something in the envelope. The rejected ballot envelope contained one ballot, as reported on the Statement of the Vote.
b. Counsel’s submissions
[67] Counsel for Candidate Bravo stated that the request to open the two unused ballot envelopes and the spoiled ballot envelope was to address the discrepancies between the numbers indicated on the envelopes and the numbers reported in the Statement of the Vote.
[68] According to counsel for Candidate Dzerowicz, the extra envelope for poll 112 with the number 332 on it should have been in the ballot box for poll 100. He advised that the ballot box for polling station 100 was missing an unused ballot envelope and that the Statement of the Vote for that polling station reported 332 unused ballots. In his view, this could not be a coincidence, especially since polls 100 and 112 were at the same location on the day of the election. Counsel for Candidate Dzerowicz submitted that given this information, there was no basis to open the unused ballot envelope with the number 332 on it. With respect to the second unused ballot envelope, he acknowledged that the number on it did not match with the number on the Statement of the Vote, but he reiterated the submissions he made with respect to polls 25 and 36, i.e. that opening the unused ballot envelope would serve no purpose as there was no remedy that could be granted on a judicial recount if numbers did not match or balance perfectly. With respect to the spoiled ballot envelope, he submitted that a spoiled ballot envelope should not be opened just because someone thought that it was too heavy, but only when there was something in it that needed to be seen, which was not the case here.
c. Rulings
[69] I ordered that the spoiled ballot envelope be opened, but only for the purpose of confirming how many ballots were inside. In my view, given the apparent attempt to correct the number on the spoiled ballot envelope and the failure to write a new number, there was a need to confirm the accuracy of the reported number of spoiled ballots on the Statement of the Vote. I held that if there was more than one ballot inside the spoiled ballot envelope, counsel could then make submissions on how such ballots should be treated. In the end, no such submissions were necessary.
[70] I also ordered that the two unused ballot envelopes be opened. In my view, there was a reliability issue given the unusual circumstances related to this poll, i.e. the presence of two envelopes in the ballot box and the fact that none of the numbers on the unused ballot envelopes matched the number of unused ballots reported in the Statement of the Vote. While the explanation for the presence of the second envelope advanced by counsel for Candidate Dzerowicz was likely correct, this could not be confirmed based on the documents that were available to the Court on a judicial recount. I held that further submissions could be made should there be any issue arising out of the opening of the unused ballot envelopes and the counting of the unused ballots. No such submissions were necessary.
5. Polls 126/136, 610 and 37
[71] Candidate Bravo requested that the envelopes containing unused ballots be opened for polling stations 126/136 and 610. Candidate Dzerowicz requested that the envelope containing unused ballots be opened for polling station 37. These requests were unopposed. For all three polling stations, the total number of votes cast reported by the recount teams was lower than the number originally counted after the election and reported on the Statements of the Vote.
a. Factual background
[72] Polls 126/136: These two polls were merged on election day, but contrary to other merged polls, only one ballot box was returned instead of two. No number was written on the unused ballot envelope found in the ballot box. There was a number of unused ballots reported in the Statement of the Vote, but the initial number was scratched out and corrected (although the same number appeared to have been written again). While the Statement of the Vote reported 134 votes cast in favour of Candidate Bravo, the recount team only counted 124 votes for Candidate Bravo (factoring in the disputed ballots, etc.).
[73] Poll 610: This was an advance polling station. While the Statement of the Vote reported 695 votes cast in favour of Candidate Bravo, the recount team only counted 666 votes for Candidate Bravo (factoring in the disputed ballots, etc.). The unused ballot envelope did not have a number written on it, but four unused ballots were reported in the Statement of the Vote.
[74] Poll 37: While the Statement of the Vote reported 88 votes cast in favour of Candidate Dzerowicz, the recount team only counted 78 votes for Candidate Dzerowicz (factoring in the disputed ballots, etc.).
b. Counsel’s submissions
[75] Counsel for Candidate Bravo stated that in light of the ballots that were unaccounted for and the discrepancies in the numbers of ballots counted for Candidate Bravo in the Statements of the Vote and at the recount, there was a concern that valid ballots cast may have ended up in the wrong envelope. She submitted that the number of votes in issue was sufficient to justify opening the unused ballot envelopes. She also relied on some of the “imperfections” in the Statements of the Vote for polling station 126/136 and my prior rulings with respect to polls 25 and 112. Further, with respect to polling station 610, she pointed out that more flexible staffing rules applied to advance polling stations in the election.
[76] Counsel for Candidate Dzerowicz submitted that there seemed to be missing ballots and that there should be an opportunity to look through the unused ballot envelopes for the purpose of locating ballots that appeared to have been issued and counted.
c. Rulings
[77] In light of the significant discrepancies between the original Statements of the Vote and the new numbers after the recount, and in order to ensure that we were not missing votes cast, I ordered the unused ballot envelopes for all three polls to be opened and the unused ballots in them to be examined and counted.
[78] I also held that if any ballots that were not unused ballots were found in these envelopes, there would be further submissions with respect to the treatment of these ballots. In the end, no further submissions were necessary.
Conclusion
[79] A judicial recount is an important safeguard to protect electoral integrity and to maintain public confidence in election results. While this particular judicial recount was terminated before reaching its “natural end”, I believe that it fulfilled the purpose that it was intended to achieve.
[80] I wish to thank the returning officer and his staff for all of their work and assistance throughout the recount. I also wish to thank all counsel for their professionalism, cooperation and assistance. Special thanks go to counsel for Elections Canada for all the help provided both before and during the recount, including all the planning, organization, coordination and clarifications.
Vermette J.
Date: October 26, 2021