Judge approves ballot recount in Windsor—Tecumseh—Lakeshore
Only 77 votes separated Conservative and Liberal candidates
A judge on Friday said he will be ordering a ballot recount in the riding of Windsor—Tecumseh—Lakeshore, where the Conservative candidate won by fewer than 100 votes in the April 28 federal election.
Ontario Superior Court Justice J. Ross Macfarlane said he was satisfied that the legal team representing the Liberals' Irek Kusmierczyk had provided enough evidence to justify a judicial recount.
"I am prepared to grant the order," Macfarlane said during Friday's court hearing, which took place over Zoom. The recount is expected to take place in the weeks ahead.
Kusmierczyk told reporters after the hearing that he was grateful for the judge's decision.
"We got a shot. That's all we asked for," Kusmierczyk said outside a courthouse in downtown Windsor. "Now it's up to the recount teams and counsel in order for us to look at those ballots and make those arguments."
The margin between Kusmierczyk, who had served as the riding's MP since 2019, and Conservative candidate Kathy Borrelli was 77 votes — just seven shy of triggering an automatic recount, based on the total number of votes cast in the riding.
"At the end of the day, what we're after is clarity and confidence for this community in the results of the election," Kusmierczyk said.
Borrelli said in an emailed statement that she respects the judge's decision.
"My team will co-operate fully in all that is required," she said.
Election scrutineers formally state they saw wrongly rejected ballots
More than 500 of the roughly 70,000 ballots cast in the riding were rejected, according to Elections Canada.
Jeff Hewitt, a lawyer who represented Kusmierczyk at Friday's court hearing, cited more than a dozen affidavits from scrutineers for Kusmierczyk's campaign who said they noticed rejected ballots that they believe were actually valid.
Some of those rejections included ballots where the voter had marked an X in the circle next to Kusmierczyk's name, but had made additional markings — such as checkmarks, circles, or written messages.
Since the legal teams did not have access to the rejected ballots themselves, scrutineers recreated the markings on replica ballots to illustrate them to the court.
Hewitt argued that the intention of the voter was clear in those cases, and that the ballots did not contain any information that would identify the voter — which would disqualify the ballot under Canadian election rules.
The law stipulates a judge must order a recount if it appears that, based on an affidavit from a credible witness, "an election officer has incorrectly counted or rejected any ballots," or has made an error on the statement of the vote.
Hewitt argued that both scenarios had occurred in the riding — though he made clear he was not accusing election workers of any ill-intent.
WATCH | A Windsor-Essex riding's election result is being challenged. How would a judicial recount work?
Borrelli: 'My team will co-operate fully'
"We knew from the very beginning that we had questions, and we knew that we saw that there were ballots that had been rejected wrongly, and those numbers were adding up," Kusmierczyk said after the hearing.
Eli Mogil, a lawyer for Borrelli, also participated in the hearing and did not take issue with any of Hewitt's arguments.
Mogil and the judge discussed the need to hold the recount during the week after Victoria Day, since key party and Elections Canada officials are already involved with recounts in other ridings the week of May 12.
They also spoke about ensuring the process is complete before Parliament returns on May 26.
Elections Canada on Friday confirmed that the recount will begin on May 20 at an office in the Green Valley Plaza in Tecumseh.
Attorneys for Borrelli, Kusmierczyk, and Elections Canada will next meet on May 12 to finalize details.
Kusmierczyk confident 77 vote difference will change after recount
Kusmierczyk said he will "absolutely and unequivocally" accept the results of the recount — but he believes he'll be able to close the 77-vote lead that Borrelli currently holds.
"We feel confident that we're gonna find those votes, but all we asked for is a shot and a second look, and that's what we were granted," the former MP said.
"Now it's like the playoffs. You fought to get into this opportunity, to have this chance. And now it's up to our volunteers again, our recount teams, our counsel, to clinch it."
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