Judge dismisses Coffin's bid for recount in St. John's East-Quidi Vidi
There will be no vote recount for the district of St. John's-Quidi Vidi, as a judge has put an obstacle in NDP Leader Alison Coffin's bid to stay in the House of Assembly.
Justice Donald Burrage of the Supreme Court of Newfoundland and Labrador said in a decision released Wednesday that the threshold for a recount has not been met.
Coffin seemed to take the legal defeat in stride.
"It's just one step in the process," she said outside the courthouse.
A recount is automatically done if the margin of victory in a Newfoundland and Labrador election is 10 votes or fewer. Above that margin, a losing candidate must ask the court for a recount.
Coffin lost to Liberal John Abbott by 53 votes, in the protracted 10-week election that ended in March.
Lawyers representing Elections NL as well as Abbott argued there wasn't sufficient evidence to justify a recount.
In his decision, Burrage said a judicial recount of the ballots is not automatic and Section 165 of the Elections Act lays out a threshold test that must be met.
Namely, it must be "made to appear by affidavit to a judge" that the deputy returning officer has improperly counted a ballot, improperly rejected a ballot, made an incorrect statement of the number of ballots cast for a candidate, or that the returning officer has improperly added up the votes, he writes in his decision.
Made to appear by affidavit is crucial, he states, because it "requires that the affidavit must be based on first-hand evidence, rather than the affiants' information and belief."
"We respect the decision. The judge is limited by the legislation, and I think we have all come to realize that the Newfoundland and Labrador Elections Act is a severely outdated act and in need of a serious overhaul," said lawyer Kyle Rees.
Lawyer John Samms, representing Abbott, said he's happy with the decision.
"When we get inside this building, it's going to be the facts and the evidence that prevail. Justice Burrage wrote a very good decision and setting out the facts and setting out how it applies to the law, and obviously I believe it's the right decision," he said.
Wednesday's legal decision clears the way for Abbott to be sworn in as an MHA.
Previous testimony
Rees argued for a recount of votes in the St. John's East-Quidi Vidi district based on an affidavit from an election scrutineer who said some votes that were counted shouldn't have been, while others that shouldn't have been, were.
In her affidavit, NDP scrutineer Judy Vanta also said she couldn't properly observe the counting process because of COVID-19 restrictions.
Rees argued some of the ballots that were rejected should have been counted because they showed the voter's intention and didn't identify the voter, according to Vanta's affadavit. But Justice Donald Burrage said nothing indicates why Vanta says the votes should have been counted.
Rees countered that Vanta couldn't guess why a particular ballot was rejected but could say it didn't meet any criteria for rejection.
Burrage said there are "no facts alleged by Ms. Coffin which might properly be relied upon to support the threshold requirement of s. 165 of the act."
The judge added, "Ms. Vanta does not speak from personal knowledge, having actually witnessed ballots which she says ought not to have been counted. With due respect, Ms. Vanta's belief, however honestly held, is pure speculation."
The Newfoundland and Labrador election is facing three other court challenges, from defeated PC candidates Jim Lester and Sheila Fitzgerald, and another one from Coffin and a St. John's resident that argues the election process was not equally accessible to all voters.
Coffin said she will now focus on her other challenge, which is due back in court on May 21.
Premier Andrew Furey led the Liberals to a narrow majority government in the election, winning 22 of the House of Assembly's 40 seats. The Tories won 13 seats, while the NDP won two. Three Independent candidates were elected.