Sharma v. Saanich (District), 2022 BCPC 257

Citation: Sharma v. Saanich (District) 2022 BCPC 257 Date: 20221025 File No: C-220350 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: RISHI SHARMA APPLICANT AND: THE DISTRICT OF SAANICH RESPONDENT ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Applicant: R.B. Hallsor, K.C. Counsel for the Respondent: J. Krusell Counsel for T. Phelps Bondaroff: M. Nefstead Place of Hearing: Victoria, B.C. Date of Hearing: Date of Hearing: Date of Judgment: October 25, 2022 x

[ 1 ] THE COURT: Mr. Rishi Sharma is one of 22 candidates who ran for eight available councillor positions with the District of Saanich in the municipal elections held this October 15, 2022. When the Chief Electoral Officer announced the results of the election on October 15, 2022, Mr. Sharma learned that his vote count landed him in ninth place, only 11 votes behind the eighth place finisher, Dr. Teale Phelps Bondaroff. Of the 27,975 votes cast in the councillor race, Dr. Phelps Bondaroff received 9,218 and Mr. Sharma 9,207. [ 2 ] Mr. Sharma brings this application for a judicial recount pursuant to s. 142(2) (a), (b), and (

c) of the Local Government Act , R.S.B.C. 2015, c. 1 . Dr. Phelps Bondaroff opposes the application. The District of Saanich also appears in this application, but takes no particular position. It does, however, emphasize through the affidavit of Angila Bains, Chief Electoral Officer for the purposes of conducting the election for Saanich, that any sort of recount will require at least three days and only then if done by machine. Mr.

Sharma submits a manual recount could be done within the time limit prescribed by the legislation, that is to say, by this October 28, 2022. [ 3 ] At issue in this application is, firstly, whether Mr. Sharma has demonstrated a basis for a judicial recount. If so, there remains the question whether it ought to be done manually, by machine, or a combination of the two. In some regard, the two issues are somewhat intertwined. [ 4 ] The election in which Mr.

Sharma ran for council was conducted pursuant to the Automated Vote Counting System Authorization and Procedures Bylaw , 2022 Number 9772, I will refer to hereafter as the "Bylaw," in order to make use of automated vote tabulators. The Bylaw is an important feature of this application and I intend to append it to these reasons as Appendix A. [ 5 ] As the Chief Electoral Officer avers in her affidavit sworn on October 24, 2022, in order to conduct the election, Saanich leased 30 automated vote tabulators from Elections Ontario to be used for recording and counting ballots.

All 30 of the vote tabulators were tested for logic and accuracy on September 26, 2022, and all passed the tests. They were then securely locked, and not used until the election. Election officials, of which there are 233, were appointed to oversee the administration and conduct of the election. All were trained. All gave their solemn declarations. [ 6 ] The Bylaw itself allows the Chief Electoral Officer to use composite ballots on which an elector can vote on two or more matters. In this case, the ballot allowed for the election of mayor, the office of councillor, and candidates for school trustee.

There were, as I have noted, eight openings for councillor for Saanich and 22 candidates vying for those offices. [ 7 ] With respect to voting procedures and rules, the Bylaw provides that the elector shall vote by making an acceptable mark on the ballot beside the chosen candidate or candidates.

An acceptable mark is defined in the Bylaw as “a mark that the vote tabulator is able to read and count.” That is the sole criteria for an acceptable mark, essentially, constituting a vote under the Bylaw. [ 8 ] The Bylaw further provides that an elector may mark only up to the same number of spaces on the ballot as the number of vacancies in office. As noted, for example, an elector could vote for as many as eight candidates for the office of councillor but not more, though certainly less than eight.

Where an elector does place a mark beside more than the allotted amount of candidates, the ballot is rejected as constituting an overvote. I will touch on the matter of overvotes later in these reasons. [ 9 ] As the Chief Electoral Officer avers, and as the Bylaw provides, the vote tabulator will reject and/or not accept ballots for several reasons.

If a ballot is rejected by the vote tabulator, the elector is then given the option of either completing a replacement ballot or authorizing an election official to reinsert the ballot using the override function so as to count any acceptable marks that have been completed correctly.

Elsewise, if an elector unintentionally spoils a ballot or makes a mistake before it is deposited in the ballot box or if a vote tabulator will not accept the ballot, a new ballot must be issued to the elector and the spoiled ballot kept separately and not eligible for counting in the Bylaw's voting procedural rules. [ 10 ] What ends up being tallied, what can only be tallied, through this automated process are those ballots which contain marks the voting machine can read and count and which it is programmed to read and count excluding overvotes.

By definition, an acceptable vote -- an acceptable mark is only one the machine can read and count. [ 11 ] With this in mind, I now turn to consider the question whether Mr. Sharma has established a basis for a judicial recount. I have noted this application is brought pursuant to s. 148(2) (a), (b), and (

c) of the Local Government Act . The

section provides as follows: 148(1) An application may be made in accordance with this

section for a judicial recount, to be undertaken by the Provincial Court, of some or all of the votes in an election.

(2) Except as provided in subsection (5), an application may be made only on one or more of the following bases: (

a) that votes were not correctly accepted or ballots were not correctly rejected as required by the rules of

section 139 … (

b) that a ballot account does not accurately record the number of valid votes for a candidate; [and] (

c) that the final determination under

section 145 … did not correctly calculate the total number of valid votes for a candidate. [ 12 ] Nothing in s-s. (5) affects the outcome of this application. Moreover, there is nothing in the materials to any way support a claim under s. 148(2) (c). Rather, if there is a basis for the recount application in the materials, it must be based on either s-ss. (

a) or (b). [ 13 ] The basis for Mr. Sharma's application consists of several points: first, and primarily it seems, the 11-vote spread between himself and Dr. Phelps Bondaroff. Given the margin of error, which Mr. Sharma's Internet search causes him to believe could be 0.11 percent, the 11-vote difference is well within the margin. Mr. Sharma does agree the evidence establishing this margin of error is thin, but submits that common sense, in any event, dictates there must be at least some margin of error. No one submits the vote tabulating machines at issue in this election are infallible, though Dr. Phelps Bondaroff, supported by the District, argues they are incredibly accurate.

[ 14 ] The other basis for this application flows from this notion of the fallibility of machines just as might be argued with respect to manual scrutineers. Mistakes can be made. Here, it is argued that the automated vote tabulators used to count ballots are prone to small errors. They might, it is submitted, miss a voter mark that is too faint, yet might be found acceptable pursuant to s. 139 of the Local Government Act . A machine might not notice if a ballot differs physically from an official ballot or a scanning machine might not notice a ballot uniquely marked so that the voter could be identified. Mr.

Sharma submits the possible reasons for errors are numerous. [ 15 ] In addition, Mr. Sharma notes the voting machines identified 400 overvotes, that is to say, instances on exactly 50 ballots where a voter marked a vote for more than eight candidates for council. In such a case, as all agree, the machine is programmed to reject the ballot and the election official is required to give the voter a chance to mark a new ballot, or the voter may agree to allow the ballot to stand in which case the voter knows that their vote for councillor, any councillor, will not be counted. Either way, as Dr.

Phelps Bondaroff submits, voter intention is both ascertained and honoured. [ 16 ] I agree with Dr. Phelps Bondaroff that it would be unfair to order a recount on this basis in that voter intention has clearly been established. Either the elector will have filled out a new ballot or agreed to proceed knowing their vote for council will not be counted. There is no evidence here of election officials failing in their duty in this regard. [ 17 ] As Dr.

Phelps Bondaroff submits, the difficulty with the application in this case, brought pursuant to s. 148 of the Local Government Act , is that it ignores the reality that the election was held under the provisions of the Bylaw. The rules as between the Local Government Act and the Bylaw are quite distinct. As an example, Mr. Sharma argues that the machines may have missed a voter's mark that is too faint, that may not have been read by the machine, even though that would be a clear preference based on s. 139 .

For ease of reference, s. 139 sets out the rules for accepting votes and rejecting ballots and it provides as follows: 139(1) The following … marks that are to be accepted and counted as valid votes for an election unless the ballot is rejected under subsection (4) [are]: (

a) a mark of the type required by section 129(1)(b) … (

b) a tick mark that is placed in the location required by section 129(1)(b); (

c) a mark of the type required by section 129(1)(

b) that is out of or partly out of the location on the ballot in which it is required to be put by that provision, as long as the mark is placed in such a manner as to indicate clearly the intent of the elector to vote for a particular candidate; (

d) a tick mark that is placed as described in paragraph (

c) of this subsection. And finally s-s. (2): A mark on a ballot other than a mark referred to in subsection (1) must not be accepted and counted as a valid vote. [ 18 ] Mr. Sharma submits a manual recount is necessary to examine each ballot to determine its conformity with the voting procedures set out in s. 139 (and, inferentially with respect to s. 129) but these are not the voting procedures by which the electors voted in the Saanich election. Those voting procedures are governed by the Bylaw.

In the Bylaw, the mark at issue, what is an acceptable mark in law and acceptable symbol of voter intention, is one the vote tabulation machine accepts. The only question is whether the machine accepted it. If it did, it is by definition an acceptable mark. If it is not an acceptable mark, of course, it would not have been counted.

The faintness of a mark, the identity of a voter on a ballot, none of these issues have any bearing on the question of what is an acceptable ballot, a ballot capable of being counted under the Bylaw. [ 19 ] In my view, there are many reasons that might be given to justify a recount for this election conducted as it was under the Bylaw. There are, for example, myriad criteria in the Bylaw governing the vote and election officials, but conformance with s. 139 is not one of them.

Ironically, given the Bylaw, had election officials tried to conform to s. 139 of the Local Government Act , it would have been unlawful. [ 20 ] The difficulty, of course, is that s. 148 of the Local Government Act sets out very specific criteria under which a judicial recount application may be brought, and it seems not to have taken into account, at least on its face, that municipal elections might be run under rules other than those set out in Division 14 of

Part 3 of the Local Government Act . Yet s. 112 of the Local Government Act allows for the passing of the Bylaw. It provides, in s-s. (2), that where a bylaw makes provisions for procedures, rules, and requirements regarding the counting of votes and where those are different than in Division 14, to the extent of the inconsistency, the rules under the Bylaw prevail. [ 21 ] It is quite clear that the voting procedures under the Bylaw govern in this case, that what constitutes an acceptable mark is that which has been accepted by a voting machine, not what might be acceptable pursuant to s. 139.

How then could this court on a judicial recount subject the two candidates at issue to rules other than those that governed the election in the first instance? I think it cannot. [ 22 ] I agree with Dr. Phelps Bondaroff that the legislation at issue can be read in a manner that gives effect to its intentions, that is to say, that the Legislature intended to allow municipalities or districts to make provision for automated voting and to provide for the necessary procedures, rules and requirements, but also intended to allow for an application for judicial recount. Dr.

Phelps Bondaroff submits that s. 148 , the provision governing recounts, has to be read in this case such that the criteria for a recount is that votes were not correctly accepted or rejected as per the Bylaw - that the ballot count as done under the Bylaw does not accurately record the number of valid votes for a candidate. Elsewise, virtually every other losing candidate in this election could seek a recount on the basis the votes did not accord with s. 139 .

They did not because the election was not conducted under those rules. [ 23 ] The other alternative and, in my view, equally compelling view is that s. 112(3) provides that the provisions of the Bylaw regarding the procedures, rules, and requirements regarding the counting of votes if they are different than Division 14 prevail generally in

Part 3 of the Local Government Act . This I take from a plain reading of s. 112(1) and (2) which provide that:

(1) A local government may, by bylaw, provide for the use of automated voting machines, voting recorders or other devices for voting in an election, subject to any requirements, limits and conditions established by regulation under

section 168 …

(2) A bylaw under subsection (1) must include the following: (

a) procedures for how to vote, to be used in place of those established by

section 129 … (

b) the form of ballot, if this is to be different from the form of ballot otherwise required by this Act; [and] (

c) procedures, rules and requirements regarding the counting of votes, if these are to be different from those established by Division 14 … [ 24 ] Subsection (3) provides: If a bylaw under subsection (1) includes only provisions referred to in subsection (2), to the extent there is an inconsistency between the procedures, rules and requirements established by the bylaw and the procedures, rules and requirements established under this Part, the bylaw prevails. [ 25 ] Unlike s. 112(2) which refers specifically to Division 14, s. 112(3) refers to any procedures, rules, and requirements established under this Part, that is to say,

Part 3.

Part 3 of course includes Division 15 and the procedures, rules, and requirements around a judicial recount. Either way, in my view, if a judicial recount is to be ordered, the court must be satisfied there is some basis on which it can be satisfied to some degree, at least, that something was not done that ought to have been done under the Bylaw. Nothing in the materials establishes any legitimate concerns in that regard. Rather, the concerns that have been raised seem to have little or no application to the voting procedures and requirements under the Bylaw. [ 26 ] Fundamentally, Mr.

Sharma does maintain that a recount should be ordered because of the closeness of the vote between himself and Dr. Phelps Bondaroff given what must be assumed as the theoretical possibility, at least, of machine error. I agree that there is a theoretical possibility, even despite the evidence regarding the vote tabulation machines' incredible reliability, echoed interestingly by Judge Ormiston after a judicial recount in Jones v. Mumford and Chief Electoral Officer at paragraph 23, unreported, Chilliwack Registry, Number 9613, September 19, 2019. [ 27 ] It is also the case that in Dhaliwal v.

Comis, Chief Electoral Officer et al , 2005 BCPC 589 , that Judge Rae accepted there were legitimate concerns about the accuracy of the tabulating machine, although in that case, given the evidence, the court writes at paragraph 3 that there was no serious dispute that there should be a judicial recount. The issue in that case was the process to be followed. I note, as well, that in Smith and Finkbeiner v. The District of West Vancouver , 2018 BCPC 326 , Judge Challenger similarly accepted, based on the reasons in Dhaliwal , that there may be legitimate concerns about the accuracy of the tabulation machine.

Dhaliwal was of course decided some time ago based on different technology. [ 28 ] Here, in 2022, I have no evidence to suggest we are dealing with the same vote tabulating machines.

In fact, counsel for the Chief Electoral Officer submits we are not, but in any event, I do, as I say, accept that machines can make mistakes, though given the definition of an acceptable mark in the Bylaw as being one the machine can read and count, and given the process that ensues if the machine rejects a ballot, it is not easy to imagine what the mistakes might be or what difference it might make. [ 29 ] Ultimately, I find I agree with Dr.

Phelps Bondaroff that a close call within a margin of error, even though that is not established, but assuming a margin of error, is not one of the criteria under which this court can order a judicial recount. Certainly, the margin of error given the 11-vote difference is compelling and something like it has in some instances led the parties to what is best described as a political decision to agree to a judicial recount, but that is not the case here. [ 30 ] Mr. Sharma is understandably distressed by the close margin. He hoped to serve his community as a councillor with the District of Saanich. Dr.

Phelps Bondaroff, on the other hand, is equally wanting to serve his community and is, obviously, convinced he rightfully won the election. The law allows Mr. Sharma a chance to seek judicial review, but the court has to be satisfied there is a legitimate reason to make such an order. Here, in my view, no reason is advanced other than this was a close election. That alone, given all the evidence before me, in my view, is an insufficient basis on which to grant the order and, for these reasons, I decline to grant Mr.

Sharma's application for a judicial recount. (REASONS FOR JUDGMENT CONCLUDED) APPENDIX A THE CORPORATION OF THE DISTRICT OF SAANICH BYLAW NO. 9772 AUTOMATED VOTE COUNTING SYSTEM AUTHORIZATION AND PROCEDURES BYLAW WHEREAS under the Local Government Act , the Council of the Corporation of the District of Saanich may, by bylaw, provide for the use of automated voting machines, voting recorders or other devices for voting in an election (and other voting);

AND WHEREAS the Council wishes to establish various procedures and requirements under that authority; NOW, THEREFORE, the Council of the Corporation of the District of Saanich, in open meeting assembled, enacts as follows: 1

DEFINITIONS 1.1 The following words and phrases shall be defined as: "Acceptable Mark" - A mark in the space provided on the ballot opposite a candidate's name or a question that the vote tabulator is able to read and count. "Automated Vote Counting System" - An automated system that records and counts votes and processes and stores election results. The system is housed in two hardware components, the upper half being the vote tabulator and the lower half being the ballot box.

"Auxiliary Ballot Box Bin" - A separate compartment in the ballot box for ballots that have been marked by electors but not counted by the vote tabulator. "Ballot" - A ballot card which may be a composite ballot for two or more elections to be voted for, including all choices available to the electors and containing spaces in which the electors mark their votes. "Ballot Account" - An account of ballots prepared in accordance with

Section 141 of the Local Government Act . "Ballot Box" - The container for ballots that have been marked by electors. "Election Headquarters" - The Saanich Municipal Hall, 770 Vernon Avenue, or other location within the boundary of the District of Saanich designated by the Chief Election Officer and used for the preparation and operation of the election. "Election Officials" - Election officials appointed by the Chief Election Officer to assist the presiding election official at election proceedings and act as alternate presiding election official. "Memory Pack" - A device that plugs into the vote tabulator that contains:

a) the names of the candidates or questions being voted on;

b) the alternative "yes" and "no" for each referendum question; and

c) a mechanism to count votes for each election or referendum or opinion question being conducted. "Portable Ballot Box" - A ballot box which is used in the election where a vote tabulator is not being used at the time of voting. "Register Tape" - The printed record generated from a vote tabulator which shows:

a) the number of ballots received;

b) the number of ballots accepted;

c) the number of ballots rejected; and

d) the number of votes for each candidate; and for and against each question on which the opinion or assent from the electors is sought "Secrecy Sleeve" - An open-ended envelope which may be used by an elector to cover the ballot to conceal the elector's marks. "Vote Tabulator" - The part of the automated vote counting system into which the ballots are inserted and which scans each ballot and records the number of votes for each candidate and for and against each question on which the opinion or assent of the electors is sought.

"Voting Book" - The book for recording the names of electors. 2 ELECTION PROCEDURES 2.1 The Chief Election Officer may decide to conduct any local government election or other matters on which the assent of the electors is sought using an automated vote counting system as authorized under this Bylaw. 2.2 If an automated vote counting system is to be used, the Chief Election Officer must conduct a test of the automated vote counting system before each local government election and must be satisfied that it is in good working order.

2.3 As soon as the test of the automated vote counting system is completed, the Chief Election Officer must secure the memory packs and ensure that they will remain secured until the local government election. 3 FORM OF BALLOT 3.1 The Chief Election Officer may provide for use of composite ballots on which an elector's votes on two or more matters may be indicated.

If a ballot is in the form of a composite ballot, each portion of the ballot that deals with a single election is to be considered a separate ballot. 3.2 Each ballot shall contain a space for an acceptable mark opposite each candidate's name, or opposite "yes" or "no" on a voting question. 3.3 The form of ballots shall be in accordance with the Local Government Act unless a bylaw under

section 117 of the Local Government Act has been passed, and in such case, the form of ballot shall be in accordance with the bylaw. 4 VOTING PROCEDURES 4.1 The Chief Election Officer will select a presiding election official for each voting place whose duties are to ensure election officials demonstrate voting procedures, issue ballots and accept marked ballots, in addition to other general responsibilities for the supervision and control of the voting place. 4.2 Each elector is entitled to a demonstration of voting procedures from an election official assigned to perform demonstrations as soon as they enter the voting place.

The elector will proceed from the demonstration area to the registration area. 4.3 An election official responsible for issuing ballots will:

a) ensure that the elector is voting in the correct voting division, where required;

b) ensure the elector signs the voting book; and

c) provide a ballot to the elector, along with a secrecy sleeve if the elector so chooses, the ballot marking pen, and any further instructions the elector requests. 4.4 Immediately after receiving the ballot, the elector must proceed to a voting compartment to vote. 4.5 The elector shall vote by making an acceptable mark on the ballot beside the chosen candidate (or candidates, where there is more than one vacancy), or beside the "yes" or "no" when the matter is one on which the assent or opinion of the electors is sought.

An elector may mark only up to the same number of spaces on the ballot as the number of vacancies in office and may not mark more than one space on a ballot for each ballot question. 4.6 Once the elector has finished marking the ballot, the elector must proceed to the vote tabulator, and under the supervision of the election official in attendance, insert the ballot into the vote tabulator without, so far as possible, the acceptable marks on the ballot being exposed. 4.7 If an elector has:

a) unintentionally spoiled a ballot or made a mistake before it is deposited in a ballot box; or

b) if the vote tabulator will not accept the ballot the presiding election official must issue a new ballot to the elector and mark the returned ballot "spoiled." Spoiled ballots must be retained and kept separately from all other ballots and must not be counted in the election results. 4.8 If a ballot is rejected by the vote tabulator, the election official must advise the elector of the reason for the rejection as shown on the vote tabulator and give the elector the option of:

a) completing a replacement ballot; or

b) reinserting the returned ballot into the vote tabulator using the ballot return over- ride function to count any acceptable marks that have been completed correctly.

4.9 Any ballot counted by the vote tabulator is valid and will be counted in the election results, subject to any determination made by the Chief Election Officer on a recount. 4.10 Once the ballot has been inserted into the ballot box, the elector must immediately leave the voting place. 4.11 If the vote tabulator stops functioning, the election official at the ballot box must insert all ballots delivered by the electors while the vote tabulator is not working into the auxiliary ballot box bin for counting at a later time. 5 ADVANCE VOTING OPPORTUNITIES PROCEDURES 5.1 The automated vote counting system will be used to conduct advance voting opportunities unless the Chief Election Officer directs that portable boxes be used. 5.2 The voting procedures at the advance voting opportunities will follow the procedures described in

Section 4 of this bylaw, as closely as possible. 5.3 At the close of the advance voting opportunity, the presiding election official must ensure :

a) that no additional ballots are inserted in the vote tabulator;

b) that the ballot boxes used are sealed to prevent insertion of additional ballots;

c) that the register tapes for the advance voting opportunity are not generated;

d) that the automated vote counting system including sealed memory packs are delivered locked to the Chief Election Officer for securing until general voting day. 5.4 The Chief Election Officer must ensure:

a) that the ballot boxes, complete with the memory packs used for the advance voting opportunity, remain sealed;

b) that the memory packs remain secure; and

c) that the register tapes for the advance voting opportunity are not generated, until 8:00 p.m. on general voting day. 6 SPECIAL VOTING OPPORTUNITIES (MOBILE POLLS) 6.1 Unless the Chief Election Officer determines it is practical to use an automated vote counting system, a portable ballot box shall be used for all special voting opportunities. 6.2 The presiding election official at a special voting opportunity shall conduct the voting in accordance with

Section 4 of this bylaw as far as applicable. 6.3 The presiding election official will ensure that the portable ballot box is secured when not in use. As soon as the presiding election official has attended all institutions as directed by the Chief Election Officer, the presiding election official must seal the portable ballot box and return it to the Chief Election Officer for safekeeping until general voting day. 6.4 If an automated vote counting system is in use at a special voting opportunity, the presiding election official appointed to attend the special voting opportunity shall follow the procedures outlined in

Part 5 of this Bylaw, as if it were in advance voting opportunity. 7 POST-VOTE PROCEDURES

7.1 Immediately after the voting place is closed, the presiding election official must:

a) insert the ballots from the auxiliary ballot box into the vote tabulator;

b) secure the vote tabulator so that no more ballots can be inserted;

c) generate three copies of the register tape from the vote tabulator;

d) remove the memory pack from the vote tabulator and deliver it, along with one copy of the register tape, to the Chief Election Officer at election headquarters ;

e) complete the ballot account to account for the voted ballots, unused ballots, spoiled ballots and unaccounted for ballots, attach one copy of the register tape and place the ballot account in the election materials transfer box;

f) place the voted ballots into the election materials transfer box;

g) place the spoiled ballots in a sealed envelope and place the envelope into the election materials transfer box;

h) seal the election materials transfer box;

i) place the lists of electors, the voting books, one copy of the register tape, a copy of the ballot account, completed elector registration cards, and all administrative forms into the Chief Election Officer envelopes; and

j) deliver the sealed election materials transfer box, the vote tabulator, and the Chief Election Officer envelopes to the Chief Election Officer at election headquarters. 7.2 At the close of general voting day, the Chief Election Officer shall direct the presiding election official for the advance voting opportunity and any special voting opportunities where automated vote counting systems were used, to proceed in accordance with

Section 7.1 of this Bylaw. 7.3 The register tapes from the vote tabulators used at the advance vote will be generated at the election office after 8:00 p.m. on general voting day. 7.4 The portable ballot boxes will be opened, at the direction of the Chief Election Officer, by the designated election officials at the election office and all ballots will be removed and inserted into the vote tabulators for counting. 8 RECOUNT PROCEDURE 8.1 If a recount is required:

a) the memory packs of all vote tabulators will be cleared;

b) vote tabulators will be designated for each voting place;

c) all voted ballots will be removed from the sealed election materials transfer boxes;

d) all voted ballots, except for spoiled ballots, will be re-inserted in the appropriate vote tabulators under the supervision of the Chief Election Officer;

e) any ballots returned by the vote tabulator during the recount process shall, through the use of the ballot return over-ride procedure, be reinserted into the vote tabulator to ensure that any acceptable marks are counted 9 REPEAL Automated Vote Counting System Authorization and Procedures Bylaw, 2017, No. 9435, and all amendments thereto are hereby repealed except insofar as they may repeal any other bylaw. 10 TITLE This Bylaw may be cited for all purposes as “Automated Vote Counting System Authorization and Procedures Bylaw, 2022, No. 9772”.

Read a first time this 30 th day of May, 2022. Read a second time 30 th day of May, 2022. Read a third time 30 th day of May, 2022. Adopted by Council, signed by the Mayor and Clerk and sealed with the Seal of the Corporation on the day of , 2022. Municipal Clerk Mayor