The lifeblood of western democracy is the right to vote, and, moreover, the right to have an elector's vote counted once deposited into the ballot box. For a losing candidate, these complementary rights ensure that after a hard fought campaign, the election result is unassailable. To provide comfort to losing candidates where a loss is suffered by a very slim margin, electoral laws generally permit automatic judicial recounts to take place in order to verify an election result and ensure that all ballots cast have been properly counted. Where the difference between the winner and the loser falls outside of the prescribed margin for an automatic judicial recount, a defeated candidate can still make an application for a recount. However, in this situation the candidate must satisfy the court that there are legitimate reasons for the recount.
This can be a daunting task, even where, as recently determined in Pella v. City of Toronto, 2023 ONSC 2021 (CanLII), the margin of defeat is a single vote.
In this case, the applicant ran for school trustee of the Roman Catholic District School Board in the City of Toronto. He lost the election by one vote. However, this narrowest margin of defeat was not subject to an automatic judicial recount because section 56 of the Municipal Elections Act, 1996, S.O 1996, c. 32, Sch (the "MEA"), only mandated a recount in the case of a tie, and the Toronto Catholic District School Board trustees did not vote in favour of a recount. Accordingly, the applicant was required to bring an application for a recount under section 58 of the MEA. This section required him to show that he had reasonable grounds for believing that the election results to be in doubt.
Although the applicant was able to demonstrate that there were reasonable grounds for believing that the election results to be in doubt, the court only ordered a recount for a limited group of ballots that had been cast in the election rather than all of the ballots cast for school trustee or all of the ballots the applicant sought to have recounted.
In my view, the narrowness of the court's order is contrary to the substantive approach that ought to have been applied to the case to ensure that all of the ballots in question were included in the recount.
Moreover, the legislative restriction that only mandates a judicial recount in the case of a tie is unduly and unjustly restrictive and signals a clarion call for municipal electoral reform in connection with when a judicial recount should be mandated in a municipal election.
In effect, section 56 of the MEA places municipal democracy in the hands of a vote tabulating machine rather than the voting public.
In contrast, section 67(2) of the provincial Election Act, R.S.O. 1990, c. E.6, requires election officials to apply for a recount where the margin of victory is 25 votes or less.
Federally, under the Canada Elections Act, SC 2000, c. 9, a recount is mandated where the margin of victory is less than 1/1000 of the votes cast.
Accordingly, from a public policy perspective, mandating a judicial recount in a municipal election only where there is tied vote clashes with the public policy choices made by higher levels of government for mandating a judicial recount in Ontario provincial or federal elections.
Furthermore, it should be noted that under section 74.1 of Ontario's Election Act, a recount is to be conducted manually, even if the original count was done by voting equipment, such as a vote tabulating machine. The default recounting process under the MEA is for the court to order the recount to be done in the same manner as the original count, unless ordered otherwise. This leave the manner of the count in the discretion of the court and fosters a view that a vote tabulating machine is foolproof.
The ballots in issue in this case consisted of
"overvotes", "undervotes" and
"adjudicated"
ballots. There was 1 "overvote", 258
"undervotes" and an unknown number of
"adjudicated" mail-in ballots.
"Undervotes" represent ballots where an elector has either not voted for a candidate or not maximized the number of votes permitted to an elector for a particular position.
"Overvotes" represent ballots where an elector votes for more candidates than allowed for a particular position.
"Adjudicated" mail-in ballots represent those votes cast by an elector who pre-registered to vote by a mail-in ballot or those votes cast by an elector with mobility restrictions whose ballot was not tabulated during the usual tabulation process.
In the City of Toronto's municipal election, electronic vote tabulation machines are used to count the votes and the usual tabulation process involves a staff person placing an elector's ballot into the machine via a secrecy folder. The machine then instantly records the elector's vote.
These machines are calibrated in such a way so that they are able to read the markings on a ballot and accurately record an elector's choice or choices. In City of Toronto elections, one ballot is used for multiple offices.
Where an elector makes an "overvote", the machine warns the staff person of the elector's spoiled vote. Election procedure then requires the staff person to alert the elector of the error and to ask if the elector would like to cast a new ballot without any "overvote".
No warning is provided for a ballot where the elector has made an "undervote".
The court only accepted that there were reasonable grounds to believe that the election results were in doubt with respect to the 1 "overvote" and the unknown number of "adjudicated" mail-in ballots. This result precluded a recount of the 258 "undervote" ballots.
While the applicant argued that the undervotes could have included cases where the vote machines failed to read a properly cast vote and cited evidence from a scrutineer of a council candidate who reported that an elector's ballot had been rejected where her mark was made outside of oval lines found on the ballot, the court concluded that there was no reason to doubt the correctness of the results in respect of the undervotes. The court justified its reason on the grounds that there was "no evidence that any voters correctly filled out their ballots for the mayoral and city council elections but for some unexplained reason made only a faint mark when attempting to vote for school trustee."
The court also relied on Goldie v. Brock, 2011 ONSC 147 in which it was held that ordering a manual recount of tabulated undervotes "simply because they exist" without some specific evidence suggesting a problem in how they were recorded "would be inconsistent with the basic theory of the legislation authorizing the use of the [vote tabulation machines]."
However, this standard is virtually impossible to meet, particularly in municipal elections where most candidates do not have scrutineers in every polling station or at all to monitor whether or not an election machine has been properly calibrated or has properly recorded a ballot fed into it.
The approach that simply places reliance on the accuracy of the vote tabulating machine is procedural rather than substantive in nature. A substantive approach, which was adopted by the Supreme Court of Canada in Wrzesnewskyj v. Opitz, 2012 SCC 55 (CanLII), which post-dates Goldie, places the right to vote and to have the vote counted ahead of the procedures used to facilitate that right.
Although the right to vote in a municipal election is not guaranteed under Canada's Charter of Rights and Freedoms, the underlying values inherent in the legislated right to vote under the MEA must be guided by the same values that are used to interpret the right to vote under section 3 of the Charter. Otherwise, the municipal right to vote is an imperfect voting right and is not a right to vote at all because the elector's vote may simply never be counted.
The court's procedural approach to the undervotes also ignores the potential systemic bias and discrimination that plagues any election. In essence, elections presume that all electors are easily able to read a ballot or understand instructions given to them predominantly in English (or French) by election officials or staff or that every elector is able to mark their ballot sufficiently so that it can be easily read by a vote tabulating machine. With respect to the latter, an elderly elector may barely be able to faintly mark an "X" or connect a line on a ballot. In the circumstances, reviewing 258 undervotes would hardly have been a time-consuming exercise to ensure that all 258 ballots had been left blank and that no validly cast ballot was not counted.
Of course, the debate on this issue would be unnecessary if the MEA's judicial recount provision applied to more than just elections which result in a tie.
In the case of municipal elections where a single ballot is used to select candidates for different offices, it can be appreciated that "undervoting" by an elector could add unnecessary expenses to the election process if recounts are permitted simply where the margin of victory is less than the number of "undervote" ballots. However, where a margin of victory is very small, a losing candidate should not be placed in a virtually impossible position of having to adduce evidence that they may never to be able to obtain in order to satisfy the "reasonable grounds to believe that the election result are in doubt" test. A losing candidate should not be left to wonder if factors such as culture, ethnicity, ability to read or write English or age was a factor that caused such an elector's validly cast ballot to never being counted. Democracy should never distinguish the right to vote and the right of the elector's ballot to be counted on any of these factors. Accordingly, this case should prompt provincial bureaucrats and politicians to reconsider section 56 of the MEA.
Whether the applicant's partial judicial recount will overturn his one vote loss is, at the time of this writing, unknown. It is also unknown if the applicant will appeal the court's decision so that the 258 undervotes are added to the judicial recount.
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