The Elections Act provides that a returning officer is not able to vote at an election. This provision is there to promote a spirit of non-partisanship and independence of the position of the returning officer. Previously, the act provided the returning officer voted only to break a tie following a judicial recount. However, the Elections Act was amended and now provides that should a tie result after a judicial recount, a by-election would be held.

Further constitutional concerns have been raised with respect to elector rights provided under the Canadian Charter of Rights and Freedoms and the possible infringement of those rights respecting returning officers.

The new Canada Elections Act includes a provision that would allow returning officers to vote at a federal election. The Standing Committee on Rules and Procedures believes that in light of recent changes to territorial and federal legislation, returning officers should have the right to vote in territorial elections.