Issik v Resler, 2023 ABKB 391

Court of King’s Bench of Alberta Citation: Issik v Resler, 2023 ABKB 391 Date: 20230626 Docket: 2301 07912 Registry: Calgary Between: Whitney Issik Applicant – and – Glen Resler, Elizabeth Evans, Nagwan Al-Guneid, Steven Maffiolo Respondents Docket: 2301 07831 Between: Tyler Shandro, KC Applicant – and – Glen Resler, David McIntyre, Diana Batten, Paul Bechthold, Larry R. Heather, Donna Kathleen Scott and Linda McClelland Respondents

_______________________________________________________ Reasons for Decision of the Honourable Justice N.E. Devlin _______________________________________________________ [1] Whitney Issik and Tyler Shandro sought Judicial recounts in the in their respective electoral divisions of Calgary Glenmoreand Calgary Acadia in the 2023 Alberta Provincial Election. These reasons outline both the process undertaken for the recount and theprinciples applied in determining the numerous objections levied against individual ballots. [2] In Calgary Glenmore, Ms.

Issik lost to Nagwan Al-Guneid by a margin of 12,681 to 12,639 in the official count conductedby Elections Alberta. In Calgary Acadia, Mr. Tyler Shandro lost to Diana Batten by a margin of 10,933 to 10,958. Both applied for ajudicial recount, pursuant to s. 144 of the Election Act, RSA 2000, c E-1. The recounts were conducted sequentially over a four-dayperiod, requiring two days each.

Purpose and Scope of a Judicial Recount [3] The fundamental purpose of a judicial recount is to provide a transparent, impartial, and reviewable count of the vote, whichinstills the public with definitive confidence in the integrity of the electoral result. Every ballot is counted under judicial supervision, ina manner that results in full agreement between the parties as to the accuracy of the count.

The validity and effect of all disputed ballotsare judicially determined after full submissions by counsel and the count amended in accordance with the reasons given by the judge.The recount thus takes place in a transparent process that is subject to appellate review. [4] As a finished product on a judicial recount, the Court is charged with providing an accurate, certified result, stating the votefor the electoral district at issue. [5] Importantly, a judicial recount is neither an audit of the voting process nor a forum in which allegations of irregularities orflaws in how the election was conducted can be raised or adjudicated.

Recourse for complaints regarding the conduct of the election isavailable under the converted elections provisions of the Election Act, (Part 7). A justice presiding over a judicial recount under

Part 4does not have jurisdiction to consider or remedy such claims: Bracko v Alberta (Returning Officer), (1997) 202 AR 69, (AB KB) at para 13. [6] To facilitate a recount, the Court is empowered to order production of the any election documents “required for the purposesof disposing of the matter”, per s. 145(1)(b).

Most importantly, this includes production of all the ballots cast. [7] Because “the matter” refers to conducting a count and resolving disputed ballots only, this power does not constitute adiscovery or disclosure mechanism in furtherance of complaints about the overall integrity of the election process, unless specificallyrelated to the counting exercise. The physical process [8] Section 146(9) of the Election Act states that a judicial recount shall be done “according to the provisions governing anofficial count by a returning officer”.

This relatively meagre guidance imports the provisions of s. 137, which provide as follows: In conducting the official count, the returning officer, with the assistance of the election clerk and any other election officers authorizedby the returning officer to assist with the counting of the ballots, shall open each ballot box and remove the Statement of Vote and theenvelopes containing the ballots. [emphasis added] [9] In simple terms, this

section means that the presiding justice does not have to personally count the ballots. Rather,experienced election officers conduct the count while directly observed by scrutineers from the impacted parties. [10] Sections 145-146 of the Election Act lay out who may be present by right during the count and excludes others except bypermission of the Court.

The necessary parties include the Chief Electoral Officer or their designate, legal representatives of the parties,the candidates themselves or their designates, and election officers appointed by the Chief Electoral Officer to attend and assist with therecount. [11] In this case, I authorized the concerned political parties to nominate larger teams of scrutineers to attend. I specificallyauthorized them to rotate individuals as their schedules required, given the length of the process.

Additionally, I authorized a reporterfrom the local newspaper to attend and observe from the gallery as he saw fit. [12] The process commenced the ballots being delivered to the courthouse by Elections Alberta and stored in a secure storage

room attached to the courtroom being used for counting. I retained the only keys to that room throughout the process. [13] Four counting teams conducted the recount in a single large courtroom. These teams were each composed of two electionofficers who, respectively, displayed the ballots and tallied the count. Opposite them sat one scrutineer from each of the political partiesbetween whom the contest was to be decided. Each team assayed one ballot box or container at a time.

Every ballot was displayed andcounted, with the teams responsible for reaching agreement on the totals. [14] Any objections over ballots were handled by automatically segregating the disputed ballot upon an objection from eitherscrutineer. No arguments or justifications concerning the objection took place during the count. Those were reserved to submissions atthe end of the process. [15] Advance votes were mechanically tallied by tabulators during the election but the original paper ballots themselves were usedin the recount, both for efficiency and transparency.

Having now completed two recounts, this Court can attest to the importance of aphysical paper ballot being attached to every vote, however tabulated. [16] Once counted, each ballot box or container was judicially re-sealed and an agreed Statement of Vote was prepared. Disputedballots were sealed in separate envelopes that accompanied the Statement of Vote. [17] A new and laudable feature of the 2023 Alberta election was the ability of voters to cast their ballot at any polling locationthroughout the province, upon provision of appropriate documentation.

In the result, a small number of ballots pertaining to the twosubject ridings were cast a large number of disparate polls. This raised a difficulty on a recount as the small number of ballots (often asfew as 1 at any given location) would permit the parties to identify individual voters’ ballots. This contravenes the sacrosanct principleof the secret ballot: s 106. [18] To overcome this problem, Elections Alberta consolidated these ballots into groups for the counting process.

This approachwas efficient and agreed to by all parties. [19] Once all the ballots had been counted, the Court convened on the record and examined each Statement of Vote. If there wereany disputed ballots in respect of that Statement, those were opened and displayed. Counsel made submissions on each ballot, oftenwithdrawing objections where the ballot was governed by established statutory provisions or jurisprudential principles. The Courtrendered a ruling on each remaining dispute. Once this process was complete, the Statement of Vote was updated to reflect the resolveddisputes.

Each finalized Statement of Vote was then certified by the Court and tallied by Elections Alberta. [20] At the conclusion of this process, a final count result was tallied and certified. Resolution of Disputes [21] In Alberta, the validity analysis of disputed ballots is governed by sections 111(5) to 111(5.2), which state:

(5) A ballot cast at a voting station shall only be counted if it clearly indicates the voter’s intention to vote for one particular candidate.

(5.1) A ballot cast as a Special Ballot shall only be counted if it clearly indicates the voter’s intention to vote for one particular candidateor one particular registered political party. [emphasis added]

(5.2) A ballot shall not be counted if it (

a) does not have on its back the name of the electoral division and year of the election, (

b) contains a vote for a candidate who has withdrawn, (

c) in the case of a Special Ballot, (

i) does not have copies of the prescribed identification document or documents included in the outer envelope, or (ii) is treated as a rejected ballot under section 118(5)(b), or (

d) contains any writing or mark enabling the voter to be readily identified. [22] These provisions are interpreted and augmented by the Court of Appeal’s comprehensive decision in Lukaszuk v Kibermanis,2005 ABCA 26. In that decision, Chief Justice Fraser, writing for a unanimous Court, emphasized at paragraph 22 that “the overridingfocus of the Court in accepting or rejecting ballots must be on the intention of the voter.” [23] The operative guidance emerging from Lukaszuk is that unorthodox methods of ballot marking do not obviate the voter’sintention, so long as the intention can be discerned from the ballot.

This principle applies equally to every different form of ballot and apresumption lies in favour of counting rather than rejecting ballots wherever a voting intention can be discerned: Lukaszuk para 27. [24] This broad and generous approach to adjudicating the validity of ballots is the dominant principle guiding the judicialadjudication of disputed ballots, and is best captured in the following passages from Lukaszuk, at paras 24-25: …the focus of the Act is on the voter’s intention as reflected by the marking made.

Put simply, the Legislature has determined thatgiven the right at stake, the citizen’s right to vote, substance must trump form – and justifiably so. The right to vote is indispensable to ademocracy. As stated by Cory J. in Haig v. Canada (Chief Electoral Officer) (SCC), [1993] 2 S.C.R. 995 at 1049:

The courts have always recognized the fundamental importance of the vote and the necessity to give a broad

interpretation to the statutes which provide for it. This traditional approach is not only sound it is essential for the preservation of democratic rights. [ 25 ] I have been guided by these principles throughout the recount process. I ruled orally on each ballot in Court and indicated that I would provide these more fulsome written reasons to follow for enhanced clarity and future guidance. i. Manner of marking [ 26 ] A large portion of objections concerned non-standard marks on ballots. A voter’s failure to follow the guidance on how a ballot should be marked does not invalidate their ballot.

For instance, the use of an “X” instead of a filled dot or failure to ‘colour inside the lines’ on advance ballots, and the converse use of circles or scribbles instead of “X”s on regular ballots, do not invalidate them where it remains clear for whom the voter intended to cast their vote.

This principle disposed of many objections covering the great variety of methods of marking and colouring-in used by voters. [ 27 ] Where a mark was clearly made beside one candidate, the votes were deemed validly cast in that candidate’s favour. [ 28 ] Similarly, a number of objections involved ballots where one candidate was marked and the spaces for the others were effectively crossed-out, similar to exemplar ballot #9 in Lukaszuk . These ballots demonstrated a clear intention in favour of one of the candidates and were credited to them.

In a related vein, one ballot had the words “NDP” – the name of the party – written over the voting circle for the NDP candidate. This too was determined to be a valid vote. [ 29 ] Several ballots were marked with proper or easily discernible votes in the proper part of the ballot, but augmented by symbols or writing expressing positive and/or negative feelings towards one or more of the candidates.

I counted these ballots as in no case did the additional verbiage or markings render the marked vote ambiguous. [ 30 ] Finally, in one instance, an advance ballot was marked with the voting area entirely blacked out in a solid box, and a series of lines and circling surrounded and partially blocked that candidate and party’s name. This was a closer call than most, but I accepted the ballot as the name and party were not completely obliterated, nor did these marks manifest an apparent intention to obliterate those names.

Therefore, I found that this non-standard but understandable mark in the voting area remained a clear vote for that candidate. ii. Poll Clerk’s failure to initial [ 31 ] A further school of objections lay in the failure of poll clerks to mark their initials in a box for the purpose atop a series of advance ballots.

This objection ran squarely into the plain wording of s. 111(6), which states that “[a]n election officer shall not decline to count a ballot solely for the reason of any writing, number or mark made or omitted by the election officer.” The objecting party quite rightly conceded that ballots lacking the election officer’s initials were valid and should be counted. It bears re-iteration that the Court’s task in this process is to count the vote and not to address broader concerns about the procedural conduct of the the election at large.

The absence of the poll clerk’s initials could constitute evidence of voting irregularities in other circumstances, but does not affect a recount. iii. Additional writing on a ballot [ 32 ] In one instance, an otherwise properly marked advance ballot had the name of a 1980s hair metal band written, in correct font, in the blank white space below the voting area. While this may suggest that offering a large blank canvas on the voting surface is not ideal ballot design, I was persuaded that this annotation, unrelated to the election, did not undo the otherwise properly marked vote. iv.

Physical damage to the ballot [ 33 ] On two regular ballots, the voting circles were ripped off, but an “X” was marked in the blank dark space beside one candidate’s name. On one of these, further circles were drawn around the candidate’s name. I was able to discern a clear intention to vote for the candidate beside whose name the “X” was marked and did not find that the damage to the ballot amounted to disqualifying spoilage. v. Partial name on inverse of ballot [ 34 ] A handful of objections of were upheld.

These included an otherwise blank ballot that had one candidate’s first name scribbled on the back of the ballot. While a close call, I was not satisfied that this represented a positive intention to vote for that candidate as opposed to a musing of some sort, it being a partial name written in an odd position on the backside of the ballot, away from the vote marking area. vi. Ambiguous markings [ 35 ] A further ballot was rejected where similar looking check marks were placed in the circle for two of the candidates.

I was not satisfied that this was either a vote by exclusion for the third, nor that one of the check marks was sufficiently prominent to indicate a concrete preference. With the voter’s intention being ambiguous, this ballot was rejected. vii. Writing on Special ballots [ 36 ] Special ballots are those issued to voters directly from the office of the returning officer or by mail. These ballots differ from

regular ballots in that there is a blank space on which the voter is meant to write the name of the person or party for whom they arevoting, rather than there being a multiple-choice listing of the candidates. Unsurprisingly, these ballots featured a more exciting range ofvariation in markings and gave rise to a concomitantly larger series of objections. [37] Again, the touchstone is whether the voter’s intention can be discerned from the ballot. viii. Non-standard writings on special ballots [38] I applied a large and liberal

interpretation of what is required for a ballot to clearly indicate the voter’s intention to cast theirvote in support of a party or candidate. Ballots that featured misspellings or partial spellings of a candidates’ name, the use of acandidate’s initials, a party’s acronym, or any broadly recognized short-form were all counted. This included a large number of ballotswhere the three letter acronyms of the parties were inverted in some fashion or the party’s name was close but wrong. Counsel for theparties both endorsed this generous

interpretation of such ballots. [39] This broad and purposive

interpretation extended as far as the poorly written initials of one candidate being counted in theirfavour. I was satisfied that that those initials are unique enough that, in the context of the election, they evidenced an intention to supportone specific person. A great range of abilities and disabilities exist amounts the Alberta electorate, and these should not operate todisenfranchise a voter unless their intention becomes indiscernible. ix. Party leader’s names written-in on special ballots [40] One novel point of contention arose in respect of special ballots.

In numerous instances, the voter wrote the party leader’sname rather than that of the party or candidate. This was objected to on the basis that, in respect of special ballots, s. 118(1.1) states that: On receipt of the prescribed forms, the voter shall mark the ballot by writing, with a pen or pencil of any colour, in the space provided,the name of the candidate or the registered political party of the candidate of the voter’s choice. [emphasis added] [41] Mr. Marlowe and Mr.

Stapon argued that s. 118(1.1) creates a specific statutory requirement or limit on the manner in which aspecial ballot may be validly marked. They pointed out that both “candidate” and “registered political party” are specifically definedterms under the Election Act and argued that this logically excludes party leaders’ names from the range of acceptable ballot markings. [42] The opposition to counting these ballots further relied on the fact that the mandatory voting instructions regarding specialballots in s. 118(1.1) is directed at the voter, whereas the general provision on voting instructions in s. 101(1)(

a) is directed to electionsofficials: An election officer assigned to administer voting shall, without inquiring or ascertaining for whom the voter intends to vote, instruct thevoter to (

a) Proceed to one of the voting booths and there, with the marker provided, mark his or her ballot by placing an “X” in the white spaceopposite the name of the candidate of his or her choice… [emphasis added] [43] It was suggested that this distinction strengthens the inference that a failure to mark either the party or candidate’s namesrenders a special ballot invalid ab initio. [44] While these submissions were artfully made, I respectfully disagree with that

interpretation. To begin with, it conflicts with s.111(5.1), which defines the requirement of validity for special ballots as being that the ballot: “clearly indicates the voter’s intention tovote for one particular candidate or one particular registered political party.” [emphasis added] [45] This wording is significant in that the legislature chose to make the voter’s intention, and not the specific words written on theballot, the focus of the analysis. This

section could have been worded to make the test whether the voter expressly named a party orcandidate. The words “voter’s intention” could have been omitted from s. 111(5.1), vesting non-compliance with the voting instructionsin s. 118(1.1) with disqualifying effect. The legislature chose not to do that. Rather, it chose to define the question of validity as whethera discernible voting intent is clearly indicated on the ballot. [46] The modern approach to statutory

interpretation requires the Court to read legislative provisions “in their entire context andin their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention ofParliament”’:Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, at para 21. The purpose of elections legislation is toenfranchise citizens. As the Court of Appeal stated in Lukaszuk at para 25: Voting is the lifeblood of democracy and courts should be very slow to disenfranchise voters on the basis of a technical non-compliancewith voting instructions.

Restrictions on that right should be narrowly interpreted and strictly limited.

This is particularly true in ourpluralistic and multi-cultural society where citizens enjoy differing levels of education, language comprehension and physical dexterity.Therefore, in a conflict between principle and technicality, principle must govern. [emphasis added] [47] Given the dominant importance accorded to honouring the voter’s intention, even in the face of often extensive non-compliance with simple ballot-marking instructions, the Court should not interpret a statutory ballot marking instruction, even one usingmandatory language, as implicitly creating a bar to ballot validity.

Rather, I find that a legislative provision nullifying a vote on the basisof non-compliance with ballot marking instructions must be explicit. [48] In this regard, I note that s. 111(5.2) enumerates specific bases upon which ballots must be rejected, and s. 111(5.2)(

c) createseven more context-specific criteria upon which a special ballot must not be counted. Neither of these lists include a failure to followvoting instructions.

[ 49 ] Finally, the parties themselves both took the position that generous leeway should be afforded to misspellings and partial spellings of party names and acronyms. This included, for instance, asking and agreeing that the United Conservative Party should be being credited for votes from special ballots marked with “UPC” and “Conservatives”, and the New Democratic Party receiving a vote from a ballot endorsed with “NDG”. [ 50 ] Each of these ballots were technically non-compliant with s. 118(1.1), yet each permitted the parties and the Court to clearly understand the voter’s intention.

A pragmatic and principled approach to special ballots extends to counting technically non-compliant but clear expressions of voting intention.

While I appreciate that a misspelling or misnaming of a party more closely approximates the requirements of s. 118(1.1) than writing a leader’s name, the difference is one of degree not kind. [ 51 ] For all these reasons, I rejected the suggestion that a special ballot that does not contain a registered party or registered candidate’s name is invalid per se . [ 52 ] Turning to the question of voter intention, it is a matter of common knowledge that parties are highly identified by their leaders in contemporary Canadian political discourse.

A purposive application of the Election Act , privileging the right to vote and have one’s intentions respected, leads to the conclusion that a ballot containing the party leader’s name, clearly spelled out, should be counted for that party. As a practical matter of fact, such a ballot leaves no doubt as to the voter’s intention. [ 53 ] For these reasons, I deemed special ballots completed with a party leader’s name to be valid and counted them for that party. Elections Alberta advised that they took the same position in their assessment of special ballots during the official count.

While that fact neither binds nor influences my decision, I take comfort from the fact that the independent electoral agency, applying its public interest mandate, reached a similar conclusion on this issue. [ 54 ] Finally, a number of special ballots were rejected and left unopened for failure to contain the required identifying documents. Since such ballots are often mailed-in, the integrity of the vote requires these documents and a failure to properly enclose them mandatorily precludes counting of the ballot: s. 111(5.2)(c)(i). I held that these ballots were properly rejected.

Conclusion [ 55 ] In the final result, I certified that, in Calgary Glenmore the NDP candidate, Ms. Al-Guneid, received 12,687 votes, an increase of six votes from the official count, and that the Applicant Ms. Issik received 12,639 votes, unchanged from the official count. [ 56 ] In the Calgary Acadia recount, I certified that the NDP candidate, Ms. Batten, received 10,959 votes, an increase of one from the official count, and that the Applicant Mr.

Shandro received 10,937 votes, an increase of four from the official count. [ 57 ] The Court is grateful to all counsel for their helpful and cooperative approach and to the election officials and scrutineers involved in the recount, all of whom approached this laborious but essential task with good faith and diligence. Their work ensured an efficient and, above all, accurate and transparent result. Heard on the June 16, 19, 20, 22 and 23, 2023. Dated at the City of Calgary, Alberta this 26 th day of June, 2023. N.E. Devlin J.C.K.B.A.

Appearances: Keith Marlowe, KC for the Applicant Whitney Issik Grant Stapon, KC for the Applicant Tyler Shandro

Steven Dollansky for the UCP David Mercer KC for the Respondents Nagwan Al-Guneid and the NDP, Diana Batten Kathleen Elhatton-Lake, Paula Hale, M. Joseph Redman, Tracy Zimmer and Monica Tran for Elections Alberta