Bill 21 - An Act to Amend the Municipal Elections Act

BILL 21

An Act to Amend the Municipal Elections Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

1 Section 1 of the Municipal Elections Act, chapter M-21.01 of the Acts of New Brunswick, 1979, is amended

(a) by repealing the definition “election officer” and substituting the following:

“election officer” includes the Municipal Electoral Officer, the Assistant Municipal Electoral Officers, every municipal returning officer, election clerk, poll supervisor, voters list officer, ballot issuing officer, poll revision officer, tabulation machine officer, mobile poll officer, special ballot officer, technical support officer, constable or any other person having any duty to perform under this Act to the faithful performance of which duty he or she may be sworn; (membre du personnel électoral)

(b) in the definition “holiday” by adding after paragraph (c) the following:

(c.1) Easter Monday;

“mobile polling station” means a polling station established for the purpose of taking the vote of voters who are residents of nursing homes, special care homes, extended care units of hospitals or seniors’ apartment complexes; (bureau de vote mobile)

(d) by repealing the definition “psychiatric facility”;

(e) by repealing the definition “treatment centre”.

2 Section 3.01 of the Act is repealed.

3 Section 5 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

5(1) The Municipal Electoral Officer and the Assistant Municipal Electoral Officers shall be the Chief Electoral Officer and the Assistant Chief Electoral Officers as appointed in the Elections Act.

(b) by repealing paragraph (2)(c) and substituting the following:

(c) issue such instructions to election officers as are necessary to ensure fair, impartial and proper conduct of elections held under this Act; and

5(3) The Assistant Municipal Electoral Officers shall assist the Municipal Electoral Officer in the performance of his duties.

(d) by adding after subsection (3) the following:

5(4) In the absence or inability of the Municipal Electoral Officer to act, or if the office is vacant, the most senior Assistant Municipal Electoral Officer shall act in place of the Municipal Electoral Officer, and while acting has the powers and shall perform the duties of the Municipal Electoral Officer.

4 The Act is amended by adding after section 5 the following:

Instructions, oaths, forms and other matters

5.1(1) The Municipal Electoral Officer may issue instructions to any election officer with respect to the conduct of the election and the procedures to be followed, and shall ensure that instructions relating to the nomination procedure for candidates, voting procedures and the counting of ballot papers are published on the website of Elections New Brunswick at least sixty days before the quadrennial elections are held, and at least thirty days before a by-election is held.

5.1(2) The Municipal Electoral Officer shall promptly provide to any person, upon his request, a copy of the instructions posted in accordance with subsection (1).

5.1(3) Any oath or form that is prescribed by the Municipal Electoral Officer for use under this Act shall be published on the website referred to in subsection (1).

5.1(4) Notwithstanding subsections (1) and (3), the Municipal Electoral Officer may modify, replace or supplement the instructions, oaths or forms posted on the Elections New Brunswick website as he considers necessary at any time in order to deal with emergency situations or other circumstances as may be required during the election period, which shall be posted as soon as practicable.

5.1(5) Instructions, oaths, forms or any other matter prescribed by the Municipal Electoral Officer, whether under this section or any other section of this Act, are not regulations within the meaning of the Regulations Act.

5 Section 6 of the Act is amended

(a) in subsection (1) by adding “and the instructions of the Municipal Electoral Officer” after “prescribed by this Act”;

(b) by repealing subsection (3) and substituting the following:

6(3) The municipal returning officer, or any person authorized to act on his behalf, may appoint one or more election clerks to assist the municipal returning officer and the election clerks shall, before entering upon their duties, take and subscribe an oath in the form prescribed by the Municipal Electoral Officer.

6 Section 7 of the Act is amended

(a) by repealing subsection (2) and substituting the following:

7(2) Before entering upon their duties, the Municipal Electoral Officer and the Assistant Municipal Electoral Officers shall take an oath in the form prescribed by regulation.

(b) by adding after subsection (2) the following:

7(3) Before entering upon their duties, a municipal returning officer and all persons on the staff of the municipal returning officer and all staff of the Municipal Electoral Officer shall take an oath in the form prescribed by the Municipal Electoral Officer to well and truly perform the duties of their office.

7 Subsection 10(1) of the Act is amended by striking out “, so that each polling division shall, whenever practicable, contain not more than four hundred and fifty voters”.

8 Section 11 of the Act is amended

(a) by repealing subsection (1) and substituting the following:

11(1) Before issuing a Notice of Election under section 15, the Municipal Electoral Officer shall issue to the municipal returning officers a preliminary voters list prepared from information in the register of electors of the persons who, based on information available to the Municipal Electoral Officer, appear to be entitled to vote in each polling division.

(b) by repealing subsection (2) and substituting the following:

11(2) The Municipal Electoral Officer shall provide the following information on each voter that is registered in the preliminary list:

(a) the given name and surname by which the voter is known in the polling division;

(b) the sex of each voter; and

11(3) The Municipal Electoral Officer shall, at least five days before the first advance polls, send to all persons on a preliminary list a notice, in the form prescribed by the Municipal Electoral Officer, advising all persons of the polling division and polling station at which they are listed as entitled to vote.

(d) by adding after subsection (3) the following:

11(3.1) A notice is not required to be sent under subsection (3) if no voting is to be conducted in a polling division, either because a candidate has been declared elected by acclamation or there are no candidates for whom to vote.

11(3.2) Subsection (3.1) does not apply in the event a plebiscite is being held in that election.

(e) by repealing subsection (6).

9 Section 12 of the Act is amended

(a) in subsection (1) by striking out “from and including the twelfth day before polling day to and including the fourth day before polling day” and substituting “up to and including the fourth day before polling day”;

(b) by repealing subsection (2) and substituting the following:

12(2) Each municipal returning officer shall complete the voters list and prepare the necessary copies for each polling station in accordance with the instructions of the Municipal Electoral Officer.

10 Section 13 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “Subject to subsection (2)” and substituting “Subject to subsections (2) and (3)”;

(b) in subsection (1.1) in the portion preceding paragraph (a) by striking out “Subject to subsection (2)” and substituting “Subject to subsections (2) and (3)”;

(d) the Municipal Electoral Officer.

(d) by adding after subsection (2) the following:

13(3) A person who is entitled to vote under this section shall only vote on the ballot papers that are applicable to the municipality and the polling division of the municipality in which that person ordinarily resides.

11 Subsection 14(2) of the Act is repealed and the following is substituted:

14(2) Notwithstanding anything in this Act, a person who is duly registered and in attendance at a recognized educational institution, and who for such purposes resides in a municipality other than that in which he ordinarily resides and who is otherwise qualified under section 13 is entitled to have his name entered on one of the following lists of voters:

(a) the list for voters for the polling division in which he ordinarily resides; or

(b) the list of voters for the polling division in the municipality in which he resides while in attendance at a recognized educational institution at the time of an election or plebiscite.

12 Section 15 of the Act is repealed and the following is substituted:

15(1) Nominations close at two o’clock in the afternoon as follows:

(a) for quadrennial elections, on the thirty-first day before polling day, or if such day is on a holiday, on the thirty-second day before polling day;

(b) for a by-election, on the twenty-fourth day before polling day, or if such day is a holiday, on the twenty-fifth day before polling day.

15(2) The Municipal Electoral Officer shall give a Notice of Election containing

(a) a list of offices to be filled,

(b) the day fixed for the close of nominations,

(d) the date of advance polls for voting, and

(e) the date on which the election is to be held.

15(3) The notice to be given under subsection (2) shall be given on a date that is

(a) not after the fourteenth day before the day fixed for the close of nominations, and

(b) not before the twenty-fifth day before the day fixed for the close of nominations.

15(4) The notice to be given under subsection (2) shall contain a notice of revision of the voters list, setting out the place and times at which revisions to the list may be made.

13 Subsection 16(4) of the Act is repealed.

14 Section 17 of the Act is amended

(a) in subsection (1)

(i) in the portion preceding paragraph (a) by striking out “twenty-five” and substituting “ten”;

(ii) in paragraph (a) in the portion preceding subparagraph (i) by striking out “prescribed by regulation” and substituting “prescribed by the Municipal Electoral Officer”;

(b) in paragraph (2)(c) by striking out “twenty-five” and substituting “ten”;

(d) in subsection (4) by striking out “on the thirteenth day before the day fixed for holding the poll” and substituting “on the third day after nominations close”;

(e) by repealing subsection (4.2);

(f) by repealing subsection (4.3).

15 Paragraph 18(2)(d) of the Act is repealed and the following is substituted:

(d) is an election officer for the election,

16 Subsection 20(1) of the Act is amended by adding after paragraph (a) the following:

(a.1) any question that is to be submitted to plebiscite,

17 Subsection 21(2) of the Act is repealed and the following is substituted:

21(2) The ballot paper shall be in the form prescribed by the Municipal Electoral Officer and shall contain the names of the candidates and such information pertaining to each candidate as the Municipal Electoral Officer considers appropriate.

18 Section 22 of the Act is repealed and the following is substituted:

22(1) The municipal returning officer shall appoint such of the following poll officials as are necessary for the holding of the poll:

(a) poll supervisor;

(b) voters list officer;

(d) poll revision officer;

(e) tabulation machine officer;

(f) mobile poll officer;

(g) special ballot officer;

(h) technical support officer;

(i) constable; and

(j) such other officers as are necessary for the holding of the poll.

22(2) No person who is under the age of eighteen years shall be appointed as a poll supervisor.

22(3) Persons appointed under this section shall be paid for their services according to the fees prescribed by regulation.

22(4) Nothing in this section prevents a person from holding more than one appointment under this section.

19 Section 22.1 of the Act is repealed and the following is substituted:

22.1 No person who is a family associate of a candidate may be appointed, act or continue to act as an election officer in any municipality in which that candidate may be elected.

20 Subsection 23(1) of the Act is amended by striking out “in the form prescribed by regulation” and substituting “in the form prescribed by the Municipal Electoral Officer” .

21 The Act is amended by adding after section 24 the following:

Municipal Electoral Officer to provide material

24.1 The Municipal Electoral Officer shall provide each municipal returning officer with all the material and equipment necessary for each polling station, including voting screens, ballot boxes or vote tabulation machines, and instructions for voters and poll officials.

22 Section 25 of the Act is repealed.

23 Section 26 of the Act is repealed.

24 Section 27 of the Act is repealed and the following is substituted:

Municipal returning officer to distribute material

27 The municipal returning officer shall distribute the materials and equipment provided under section 24.1 and the appropriate voters lists and ballot papers to the appropriate election officers, in accordance with the instructions of the Municipal Electoral Officer.

25 Section 28 of the Act is repealed and the following is substituted:

Advance polls

28(1) The Municipal Electoral Officer shall conduct an advance poll and shall determine the location of the advance poll.

28(2) An advance poll shall be open at each advance polling station on the Saturday and Monday, the ninth and seventh days before the ordinary polling day.

28(3) For a by-election or for a plebiscite held other than during a quadrennial election, an advance poll shall be held on the Saturday, the ninth day before polling day.

28(4) The Municipal Electoral Officer may direct that additional advance polls be held.

26 Section 30 of the Act is repealed and the following is substituted:

Oaths of office before opening of poll

30(1) Before the opening of the poll, whether ordinary or advance, all election officers and scrutineers assigned to work at a polling station shall take the oath prescribed by the Municipal Electoral Officer.

30(2) A poll supervisor who works at a polling station may have his oath taken by the municipal returning officer or an election clerk and all other election officers may have their oaths taken either by the municipal returning officer, an election clerk or the poll supervisor.

27 Section 31 of the Act is repealed and the following is substituted:

Opening and closing of polling stations

31(1) On any ordinary polling day or advance polling day, the poll for an election shall be open at the hour of ten o’clock in the forenoon and kept open until the hour of eight o’clock in the afternoon of the same day.

31(2) If for any reason the opening of a poll is delayed past ten o’clock, the poll supervisor shall notify the municipal returning officer of the cause of the delay, shall make a record of the hour at which the poll is opened and shall keep the poll open for voting during ten full hours after opening.

31(3) Where at the time of the closing of the poll there are any voters in the polling station or in line at the door who are entitled to vote and have not done so since their arrival at the polling station, the poll shall be kept open a sufficient time to enable them to vote, but no one not actually present at the time of closing shall be allowed to vote, even if persons are still voting when he arrives.

31(4) No person other than the following may be present at a polling station on an ordinary polling day or advance polling day:

(a) the Municipal Electoral Officer;

(b) an Assistant Municipal Electoral Officer;

(d) an election clerk;

(e) poll officials appointed by the municipal returning officer for that polling station;

(f) candidates;

(g) scrutineers;

(h) voters engaged in or waiting to vote; and

(i) any other person authorized in writing by the Municipal Electoral Officer to be present.

28 Section 31.1 of the Act is repealed and the following is substituted:

31.1 No telephone, including a cellular phone, or any other device that may be used to communicate directly or indirectly with another person shall be used in any room where a poll, including a mobile poll, is held during the time the poll remains open except by an election officer designated by a municipal returning officer or the Municipal Electoral Officer, and that is used in accordance with their directions.

29 Section 31.2 of the Act is amended by striking out “subsection 31(3)” and substituting “subsection 31(4)”.

30 The Act is amended by adding after section 31.2 the following:

Presence of media where no mayoralty candidate

31.3 Notwithstanding subsection 31(4), where there is an election or plebiscite but no mayoralty candidate, the municipal returning officer may permit representatives of a bona fide news broadcaster or news publication to enter a polling station before or during the holding of a poll for the sole purpose of photographing or otherwise visually recording the polling station if

(a) previous arrangements to the satisfaction of the municipal returning officer have been made, and

(b) no interviews are conducted in the polling station.

31 Section 32 of the Act is repealed and the following is substituted:

Duties of election officers

32(1) Before the poll is open in polling stations where ballots are to be counted by hand, the ballot issuing officer shall show all other election officers, candidates and scrutineers present that the ballot boxes to be used are empty before sealing such boxes, which shall remain sealed and in public view until the close of polls, and which shall then be dealt with in accordance with the instructions of the Municipal Electoral Officer.

32(2) Before the poll is open in polling stations where ballots are to be counted by machine, the poll supervisor shall, approximately fifteen minutes before the poll opens, prepare the vote tabulation machine for polling use in accordance with the instructions of the Municipal Electoral Officer so as to demonstrate to all other election officers, candidates and scrutineers present that no votes have yet been recorded on any such machine, and he shall then open the machine for the purpose of accepting votes.

32(3) Every poll supervisor, from the time he takes his oath of office until completion of the performance of his duties as poll supervisor, shall maintain order and preserve peace in the vicinity of the polling station and is vested with all the powers appertaining to a peace officer, and he may

(a) require the assistance of peace officers, constables or other persons present to aid him in maintaining peace and good order at the polling station,

(b) arrest or cause by verbal order to be arrested and place or cause to be placed in the custody of a peace officer or constable or other person, any person disturbing the peace and good order at the polling station,

(c) remove or cause to be removed from the polling station any person who is not entitled to be present, or who, being so entitled, obstructs the voting, and

(d) remove or cause to be removed on the day of an advance poll or on the ordinary polling day any advertisement, handbill, placard, poster, dodger, billboard, electronic billboard or any other means of display in any form having reference to an election, a candidate or a matter to be voted on at a plebiscite which is displayed on the premises in which a polling station is located or within thirty metres of the said premises.

32 Paragraph 33(b) of the Act is repealed and the following is substituted:

(b) render assistance to the poll supervisor or other election officers when required.

33 Section 34 of the Act is repealed.

34 Section 34.1 of the Act is repealed.

35 Section 35 of the Act is repealed.

36 Section 36 of the Act is repealed and the following is substituted:

Voting procedure at polling station

36(1) On entering the polling station a voter shall state his name and address to a voters list officer checking the names of voters on the voters list received from the municipal returning officer.

36(2) If the person’s name is on the voters list for that polling station, the voters list officer shall strike off the person’s name on the list and direct the person to a ballot issuing officer.

36(3) If the person’s name is not on the voters list for that polling station, the person may have his name added to the list by completing an application to be added to the voters list and a declaration of qualification to vote in a form prescribed by the Municipal Electoral Officer and

(a) presenting one or more identification documents, excluding financial or credit cards, that between them show the person’s name, current civic address and signature, or

(b) being vouched for by a voter whose name is on the voters list for the municipality and who personally attends at the polling station with the person proposing to vote and who takes an oath in the form prescribed by the Municipal Electoral Officer.

36(4) An application under subsection (3) shall be completed before a voters list officer, a poll revision officer or the poll supervisor.

36(5) A ballot issuing officer shall give each voter a ballot paper for the contest or contests in which the voter is qualified to vote, explain how to mark the ballot paper, and direct the voter to a voting compartment where the voter can mark the ballot paper without being observed by any other person.

36(6) A voter who makes a mistake in marking a ballot paper may return it to the ballot issuing officer who issued the ballot paper, who shall mark it as a “spoiled ballot” and give the voter a new one.

36(7) When a voter has marked his ballot paper it shall be deposited in a ballot box in accordance with the instructions of the Municipal Electoral Officer under section 24, and the voter shall leave the polling station at once.

37 Section 37 of the Act is repealed and the following is substituted:

37(1) If a scrutineer or a voters list officer, ballot issuing officer or poll supervisor has reason to believe that a person applying to vote is not qualified to vote, at all or at that particular polling station, he shall require the person to take an oath in a form prescribed by the Municipal Electoral Officer confirming the person’s qualification to vote, and a person who refuses to take the oath when so required may not vote.

37(2) If a person applies to vote and the name of such person is already striken off the voters list as having voted, the person may vote if he

(a) establishes his identity to the satisfaction of the voters list officer or poll supervisor at that polling station, and

(b) takes an oath in the form prescribed by the Municipal Electoral Officer that he has not already voted at the same or any other election or plebiscite then pending.

37(3) The voters list officer shall keep a record of any person applying to vote pursuant to this section and shall note in the record if the person did or did not take the oath.

38 Section 38 of the Act is repealed and the following is substituted:

38(1) If a voter requires assistance to vote, he shall be assisted by an election officer at the polling station or, if the voter prefers, by another person chosen by the voter, which person shall take an oath in the form prescribed by the Municipal Electoral Officer to mark the voter’s ballot paper in accordance with the voter’s directions, and to keep secret the vote of such voter.

38(2) A person other than an election officer may assist only one voter to vote.

39 The Act is amended by adding after section 38 the following:

Closing of advance poll

38.01 At the closing of an advance poll that will be reopened on the next or a later day, poll officials shall follow the instructions of the Municipal Electoral Officer with respect to

(a) securing and safeguarding the cast and unissued ballots, voters lists and all other materials and equipment used at that polling station until the poll is reopened, and

(b) procedures for reopening the poll for voting on the next or later day.

Counting of votes

38.02 At the closing of the ordinary polls or the final closure of an advance poll, election officers shall follow the instructions of the Municipal Electoral Officer with respect to the counting, reporting and recording of the votes cast at such polling stations, and delivering the ballots, ballot boxes, voters lists, record of voting, and all other poll materials and equipment to the municipal returning officer.

40 Section 38.1 of the Act is amended

(a) in the portion preceding paragraph (a) by striking out “treatment centres” and substituting “nursing homes, special care homes, extended care units of hospitals”;

(b) by repealing paragraph (b) and substituting the following:

(b) appoint two mobile poll officers for each mobile polling station.

41 Section 38.2 of the Act is repealed and the following is substituted:

Voting procedure at mobile polls

38.2(1) The mobile poll officers shall at the appointed time on polling day first set up the polling station in a common area of the facility to take the vote of voters able to attend such polling station, where appropriate, and shall thereafter carry the ballot box, ballot papers and other necessary documents from room to room in the facility to take the vote of voters who are residents of the facility.

38.2(2) The mobile poll officers shall conduct the poll in accordance with the instructions given by the Municipal Electoral Officer with respect to mobile polls, and shall give the residents any assistance that may be necessary in accordance with section 38.

42 Section 38.3of the Act is repealed and the following is substituted:

Persons who may accompany mobile polling station

38.3 Notwithstanding subsection 31(4), only the following persons may accompany a mobile polling station as it moves from room to room in a facility:

(a) the mobile poll officers;

(b) the municipal returning officer or an election clerk; and

43 Section 38.4 of the Act is repealed and the following is substituted:

Ballots used at mobile polls

38.4 The ballots used at the taking of a poll at a nursing home, special care home, extended care unit of a hospital or seniors’ apartment complex shall be the ballots used for the election in the municipality in which the facility is located.

44 Section 38.5 of the Act is repealed and the following is substituted:

Administrator to sign statement

38.5 The administrator of or person appointed by a nursing home, special care home, extended care unit of a hospital or seniors’ apartment complex shall on the close of the taking of the poll at the facility, sign a statement certifying that all voters resident in the facility and who were present in the facility at the time reserved for the mobile poll have been given an opportunity to vote.

45 Section 38.6 of the Act is repealed and the following is substituted:

Deputy returning officer to sign statement

38.6 A mobile poll officer shall, on the close of the taking of the poll at a nursing home, special care home, extended care unit of a hospital or seniors’ apartment complex, sign the statement referred to in section 38.5 after it has been signed by the administrator of or person appointed by the facility.

46 Section 39 of the Act is repealed.

47 Section 39.01 of the Act is repealed and the following is substituted:

Special ballot officers

39.01 A municipal returning officer shall appoint two special ballot officers for a quadrennial election, and may, subject to the approval of the Municipal Electoral Officer, appoint two special ballot officers for a by-election or plebiscite.

48 Section 39.1 of the Act is repealed and the following in substituted:

Application for special ballot

39.1(1) A person who is entitled to vote at an election may apply in the manner and form prescribed by the Municipal Electoral Officer to a special ballot officer for a special ballot paper for the municipality and polling division in which the person is ordinarily resident.

39.1(2) An application under subsection (1) may be made at any time after the publication of the Notice of Election under section 15 and shall be made in time to permit the return of the special ballot paper to the special ballot officers no later than eight o’clock in the afternoon on polling day.

49 Section 39.2 of the Act is repealed and the following is substituted:

Special ballot papers — form

39.2 Special ballot papers shall be in the form prescribed by the Municipal Electoral Officer and shall be provided to special ballot officers by the Municipal Electoral Officer.

50 Section 39.3 of the Act is repealed and the following is substituted:

Issuance of special ballots and voting procedure

39.3(1) Before issuing a special ballot paper, a special ballot officer shall ensure that the applicant’s name appears on the voters list for the municipality in which the voter ordinarily resides and shall ensure that the voter has not previously been issued a special ballot paper.

39.3(2) A person who is qualified to vote and whose name does not appear on the voters list for the municipality in which the person ordinarily resides may apply to have his name added to the list when applying for a special ballot paper under section 39.1.

39.3(3) A special ballot officer shall issue a special ballot paper

(a) by giving it to the voter at the returning office, or

(b) by forwarding it by certified mail or courier to the address of the voter shown on the application referred to in section 39.1.

39.3(4) Notwithstanding subsection (3), special ballot officers may issue a special ballot paper by delivering it to a voter outside the returning office if they are satisfied that the voter will not be able to attend the ordinary or advance polls due to the illness or incapacity of the voter or due to the illness or incapacity of a person for whose care the voter is primarily responsible.

39.3(5) Upon issuing a special ballot paper to a voter, a special ballot officer shall record the following in the special ballot poll book:

(a) the name and address of the voter;

(b) the municipality and the polling division in which the voter ordinarily resides;

(d) whether the special ballot paper was issued in person, by certified mail or by courier.

39.3(6) If a special ballot paper is issued to a voter in accordance with paragraph (3)(a) or subsection (4),

(a) the voter shall

(i) mark the ballot in favour of the candidate for whom he votes in the space provided for this on the special ballot paper,

(ii) place a mark on the special ballot paper beside the word “yes” or “no” opposite a question submitted to plebiscite, and

(iii) deposit it in the ballot box, and

(b) the special ballot officers shall record in the special ballot poll book that the voter has voted.

39.3(7) If a special ballot paper is issued to a voter under subsection (4), two special ballot officers shall be present to take the vote of the voter.

39.3(8) If a voter is unable to vote without assistance, a special ballot officer may assist the voter in completing a special ballot paper in the presence of another special ballot officer.

39.3(9) If a special ballot officer is unavailable, a municipal returning officer or an election clerk may issue a special ballot paper to a voter in accordance with paragraph (3)(a) and may take the vote of a voter in the same manner as a special ballot officer.

39.3(10) If a special ballot paper is issued to a voter in accordance with paragraph (3)(b), the following shall be issued with the special ballot paper:

(a) instructions indicating how to complete and return the special ballot paper; and

(b) a ballot envelope and a certificate envelope.

39.3(11) Upon receipt of a special ballot paper in accordance with paragraph (3)(b), a voter shall

(a) mark the ballot in favour of the candidate for whom he votes in the space provided for this on the special ballot paper,

(b) place a mark on the special ballot paper beside the word “yes” or “no” opposite a question submitted to plebiscite,

(d) place the ballot envelope in the certificate envelope and seal the certificate envelope,

(e) complete and sign the certificate on the certificate envelope, and

(f) return the certificate envelope to the special ballot officers who issued the special ballot paper no later than eight o’clock in the afternoon on polling day.

39.3(12) Upon receipt of a certificate envelope, the special ballot officers, acting together, shall ensure that

(a) the certificate envelope is properly completed,

(b) the name on the certificate envelope is the same as that of the voter to whom a special ballot paper was issued, and

(c) the signature on the certificate envelope appears to be the signature of the voter who applied for the special ballot paper.

39.3(13) If the special ballot officers are satisfied that the requirements of subsection (12) have been fulfilled, they shall

(a) remove the ballot envelope from the certificate envelope,

(b) deposit the ballot envelope in the special ballot box,

(c) record in the special ballot poll book the date and time that the certificate envelope was received and that the voter named on the certificate has voted, and

(d) destroy the certificate envelope.

39.3(14) If the special ballot officers are not satisfied that the requirements of subsection (12) have been fulfilled, they shall mark “spoiled ballot paper” on the certificate envelope and deposit the unopened certificate envelope in an envelope designated for spoiled ballot papers.

39.3(15) If a special ballot officer or a municipal returning officer receives a certificate envelope after eight o’clock in the afternoon on polling day, the certificate envelope shall be dealt with in accordance with subsection (14) and he shall record in the special ballot poll book the time, date and place that the certificate envelope was received.

39.3(16) A voter who has not returned a certificate envelope in accordance with paragraph (11)(f) shall not be issued a second special ballot paper unless

(a) the voter returns the damaged or improperly marked special ballot paper that was originally issued to the voter to the special ballot officers, or

(b) the voter provides the special ballot officers with an affidavit in which the voter subscribes that he has reason to believe that the special ballot paper will not be received by the special ballot officers by eight o’clock in the afternoon on polling day, and the affidavit shall include the basis for the voter’s belief.

39.3(17) A voter who has inadvertently dealt with the special ballot paper delivered to the voter in such a manner that it cannot conveniently be used shall return it to the special ballot officer, who shall deface it in such manner as to render it a spoiled ballot and who shall then deliver another special ballot paper to the voter.

39.3(18) No person shall vote at an advance poll or on polling day if

(a) the person has voted by special ballot, or

(b) the person has been issued a special ballot paper that has not been returned to a special ballot officer.

51 Section 39.4 of the Act is repealed and the following is substituted:

Special ballot boxes — location and care

39.4(1) There shall be at least two special ballot boxes in each municipal returning office.

39.4(2) The special ballot officers, in the presence of the municipal returning officer, shall seal the special ballot boxes before any special ballot papers are issued, and the boxes shall remain sealed until after the close of the polls on the ordinary polling day.

52 The Act is amended by adding after section 39.4 the following:

Special ballots — counting

39.5(1) Immediately following the close of the ordinary poll and in the presence of the municipal returning officer or election clerk, the special ballot officers shall ensure that the special ballots are counted at the office of the municipal returning officer and they shall take all other proceedings provided by this Act and the instructions of the Municipal Electoral Officer in connection with the conduct of an election after the close of the ordinary poll.

39.5(2) The special ballot officers shall ensure that the special ballot papers for each municipality are counted and recorded separately and shall ensure that the returning officer for each municipality for which they have special ballots is notified of the number of votes for each candidate in that municipality.

53 Section 40 of the Act is repealed.

54 Section 41 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “Upon receiving the poll books from the deputy returning officers” and substituting “Upon receiving the poll materials from the polling stations”;

(b) in paragraph (2)(a) by striking out “in the form prescribed by regulation” and substituting “in the form prescribed by the Municipal Electoral Officer”;

(c) in subsection (3) of the French version by striking out “recompter les voix” and substituting “procéder à un nouveau dépouillement des voix”;

(d) by repealing subsection (4) and substituting the following:

41(4) Where in the event that action taken in subsection (3) results in an equality of votes, the municipal returning officer shall

(a) if the candidates agree, write the names of such candidates separately on blank pieces of paper and after folding the pieces of paper in such a way that the names are concealed, deposit them in a receptacle and draw one of the pieces of paper, and the candidate whose name appears on the paper withdrawn shall be declared by the municipal returning officer to be elected, or

(b) if there is no agreement under paragraph (a), request to a judge referred to in section 42 that a recount be made, and for the purposes of such request, subsections 42(3) to (10) apply.

(e) by repealing subsection (6) and substituting the following:

41(6) Immediately after the votes have been recounted by the municipal returning officer, he shall

(a) place in a ballot transfer box provided by the Municipal Electoral Officer, all the ballot papers, keeping in a separate bundle those ballot papers over which there has been no agreement as to how they should be counted, and

(b) seal the ballot transfer box.

(f) by adding after subsection (6) the following:

41(7) With the consent of the candidates who are tied, a request by a municipal returning officer under paragraph 41(4)(b) for a recount may be made only in respect of the ballot papers over which there has been no agreement as to how or if they should be counted.

55 The Act is amended by adding after section 41 the following:

Recounts — 25 votes or less difference

41.1(1) Where the report of the municipal returning officer discloses that there is a difference of not more than twenty-five votes between the number of votes cast for a candidate declared elected and a candidate who was not elected, a candidate who was not declared elected may, within ten days after the election, apply to the municipal returning officer for a recount of the votes.

41.1(2) The municipal returning officer shall, within ten days after receiving an application under subsection (1), fix a time for a recount and shall without delay notify the Municipal Electoral Officer, the candidate who filed the application and such other candidates as the municipal returning officer determines should be notified of the date, time and place for such recount.

41.1(3) A recount under this section shall be conducted at the municipal returning office.

41.1(4) Where the ballots were counted by a vote tabulation machine, a recount may be done by machine alone if all candidates who are notified under subsection (2) agree, or if there is no such agreement, the recount shall be done by both hand count and machine count.

41.1(5) If there is a discrepancy between the results of the hand count and the machine count, the municipal returning officer conducting the recount shall determine which count is accurate.

41.1(6) Subject to subsection (8), at the conclusion of the recount, the municipal returning officer shall confirm the original declaration of the results of the election or revoke the original declaration and complete a new declaration if the outcome has changed as a result of the recount.

41.1(7) Immediately after the votes have been recounted by the municipal returning officer, he shall

(a) place all the ballot papers in a ballot transfer box provided by the Municipal Electoral Officer, keeping in a separate bundle those ballot papers over which there has been no agreement as to how or if they should be counted,

(b) insert into the box a statement signed by him stating the number of votes counted for each candidate and the number of ballot papers over which there has been no agreement as to how or if they should be counted, and

41.1(8) If two or more candidates for an office have been allowed the same number of votes by the municipal returning officer, and the candidates agree, he shall write the names of such candidates separately on blank pieces of paper and after folding the pieces of paper in such a way that the names are concealed, deposit them in a receptacle and draw one of the pieces of paper, and the candidate whose name appears on the paper withdrawn shall be declared by the municipal returning officer to be elected.

56 Section 42 of the Act is amended

(a) by adding before subsection (1) the following:

Recount by judge

42(0.1) A candidate who has participated in a recount under section 41.1 or who has lost an election by more than twenty-five votes may file a petition under subsection (1).

(b) by repealing subsection (1) and substituting the following:

42(1) Within ten days after the date of the declaration made under section 41.1 or within ten days after the date of the election, as the case may be, a candidate referred to in subsection (0.1) may file a petition in the form prescribed by the Municipal Electoral Officer with a judge of The Court of Queen’s Bench of New Brunswick requesting

(a) a recount of only the ballots on which the parties cannot agree as to how or if they should be counted, if a recount has taken place under section 41.1, or

(b) a full recount of all votes cast,

and if by such petition the candidate establishes to the satisfaction of the judge that a municipal returning officer, in counting the votes, has improperly counted or improperly rejected any ballot papers or made an incorrect statement of the number of votes cast for any candidate, or the municipal returning officer has improperly added up the votes, the judge shall set a time and place for such recount, and shall notify without delay the Municipal Electoral Officer, the municipal returning officer, the candidate who made the application, and such other candidates as the judge determines should be notified.

(d) by repealing subsection (3) and substituting the following:

42(3) The municipal returning officer shall bring to the place where the recount is being held the sealed box in which the ballots are kept and such other documents as the judge directs.

(e) by repealing subsection (4) and substituting the following:

42(4) At the time and place appointed, the judge, in the presence of the municipal returning officer and those notified who are in attendance, shall recount the votes cast over which the parties did not agree or recount all of the votes cast, as the case may be, as provided in subsections (5), (7), (8), (9) and (10).

(f) by repealing subsection (5) and substituting the following:

42(5) The judge shall review the instructions of the Municipal Electoral Officer as to how ballots were to be issued, marked and counted in the election, and shall examine the ballots cast and determine the votes cast for each candidate.

(g) by repealing subsection (6);

(h) by repealing subsection (8) and substituting the following:

42(8) When the ballot papers have been examined and counted, the judge shall forthwith sum up and announce the total number of votes allowed for the candidate who filed the petition and each other candidate notified under subsection (1), and declare elected the candidate or candidates having the highest number of total votes among the candidates for whom the recount was carried out.

(i) by repealing subsection (10) and substituting the following:

42(10) The judge shall then make and transmit without delay to the municipal returning officer a written statement of the result of the recount and every such written statement shall show

(a) the name of the candidate who filed the petition,

(b) such other candidates as the judge required to be notified under subsection (1),

(d) the number of ballot papers rejected, and

(e) the names of the candidates declared elected on the basis of the recount.

(j) by repealing subsection (11) and substituting the following:

42(11) Where a petition is filed under subsection (1) and the candidate declared elected by a municipal returning officer is not so declared elected by the judge, the judge shall

(a) order the costs of all parties to be paid by the Municipal Electoral Officer, and

(b) fix such costs in accordance with the schedule of costs prescribed by regulation.

(k) in subsection (12) of the French version in the portion preceding paragraph (a) by striking out “recomptage” and substituting “dépouillement judiciare”;

(l) by repealing subsection (13) and substituting the following:

42(13) The amount awarded in costs under subsection (12) to a candidate may be enforced by execution to be issued upon filing the order of the judge and a certificate showing the amount at which costs were fixed and an affidavit of the non-payment of those costs.

57 The Act is amended by adding after section 42 the following:

Administrative errors affecting outcome of election

42.1 Where the Municipal Electoral Officer is, within twenty-one days after an election, made aware of an administrative error or defect in equipment used in an election and is satisfied that the outcome of the election was affected in a manner that cannot be redressed by a recount, the Municipal Electoral Officer may set aside the declaration of the municipal returning officer for that election and may call a by-election.

58 Subsection 43(2) of the Act is repealed and the following is substituted:

43(2) Notwithstanding the Archives Act, all ballot papers cast in an election and all other documents used at the polling station may be destroyed after thirty days unless they may be involved in a recount in which case they may be destroyed thirty days after the recount.

59 Subsection 44(3) of the Act is amended by striking out “Municipal Election Officer” and substituting “Municipal Electoral Officer”.

60 Subsection 49(1) of the Act is repealed and the following is substituted:

49(1) Where in this Act any oath, affirmation, affidavit or statutory declaration is authorized or directed to be made, taken or administered, it shall be made before and administered by the person who by this Act, the regulations or instructions of the Municipal Electoral Officer is expressly required to administer it, and if no particular person is required to administer it, then by the judge of any court, a municipal returning officer, an election clerk, a poll supervisor, a special ballot officer, mobile poll officer, a notary public or a commissioner of oaths.

61 Section 51 of the Act is amended in the portion preceding paragraph (a) by striking out “deputy returning officer, supervisory deputy returning officer, poll clerk, special ballot officer” and substituting “election officer”.

62 Section 52 of the Act is amended

(a) in paragraph (c) by striking out “deputy returning officer, supervisory deputy returning officer or special ballot officer” and substituting “election officer”;

(b) by adding after paragraph (e) the following:

(e.1) fraudulently or maliciously destroys, takes or interferes with the information on or use of any equipment on which a voters list or any record of who has voted is maintained, or with a vote tabulation machine,

63 Section 57 of the Act is amended

(a) in subsection (1)

(i) by repealing paragraph (b);

(ii) by repealing paragraph (c);

(iii) by repealing paragraph (d);

(iv) by repealing paragraph (e);

(v) by repealing paragraph (f);

(vi) by repealing paragraph (j);

(vii) by repealing paragraph (k) and substituting the following:

(k) respecting oaths to be taken by the Municipal Electoral Officer and the Assistant Municipal Electoral Officers.

(b) by repealing subsection (2).

64 Schedule A of the Act is amended

(a) by adding after

52(e)...............

the following:

52(e.1)...............

(b) by striking out

53(a)...............	F
53(b)...............	F
53(c)...............	F
53(d)...............	I

and substituting the following:

53(1)(a)...............	F
53(1)(b)...............	F
53(1)(c)...............	F
53(1)(d)...............	I

65 The Education Act, chapter E-1.12 of the Acts of New Brunswick, 1997, is amended

(a) by repealing subsection 36.3(4);

(b) by repealing subsection 36.4(2).

66 Section 33 of the Municipalities Act, chapter M-22 of the Revised Statutes, 1973, is amended

(a) in paragraph (2)(b) by striking out “subsection 42(1)” and substituting “subsection 41.1(1) or 42(1)”;

(b) by repealing subsection (2.2) and substituting the following:

33(2.2) Notwithstanding subsections (1), (2), (2.01) and (2.1), where an application has been filed under section 41.1 or 42 of the Municipal Elections Act requesting that a recount of votes be made with respect to an election to office on a municipal council in a quadrennial election, a by-election or a first election under section 19, a person elected to such office shall not accept office by taking and subscribing to the oath of office until the person has been declared elected by the municipal returning officer or the judge conducting the recount.

67 The Taxpayer Protection Act, chapter T-0.5 of the Acts of New Brunswick, 2003, is amended

(a) in section 12

(i) in subsection (1) by striking out “Subject to subsections (2) to (12)” and substituting “Subject to subsections (2) to (4) and (10) to (12)”;

(ii) by repealing subsection (2) and substituting the following:

12(2) Section 46 of the Municipal Elections Act does not apply to a referendum under this Act.

(iii) by repealing subsection (4) and substituting the following:

12(4) References to “plebiscite” in the Municipal Elections Act, other than in section 46, as adopted under subsection (1), shall be read as “referendum”.

(iv) by repealing subsection (5);

(v) by repealing subsection (6);

(vi) by repealing subsection (7);

(vii) by repealing subsection (8);

(viii) by repealing subsection (9);

(ix) in subsection (10) by repealing subsections 41(1) and 41(2) as enacted by subsection (10) and substituting the following:

41 (1) Upon determining the results from all polls for which he or she is responsible, the municipal returning officer shall forthwith forward them to the Municipal Electoral Officer.

41 (2) Having received the results from the municipal returning officers, the Municipal Electoral Officer shall forthwith declare the result of a referendum.

(x) in subsection (11) by repealing subsection 42(5) as enacted by subsection (11) and substituting the following:

42 (5) The judge who is appointed to supervise a recount under section 41(3) shall, in consultation with the Municipal Electoral Officer, determine the procedures to be followed in conducting the recount, and the persons required or appointed to attend such recount shall carry out such procedures in the presence of the judge.

(b) by repealing subsection 15(2).