Date:
20061013
Docket
No.: T-1769-06
Citation: 2006 FC 1220
Ottawa, Ontario, October 13, 2006
PRESENT: The
Honourable Mr. Justice Blanchard
BETWEEN:
CHIEF VICTOR BUFFALO, on his own behalf
and on behalf of the SAMSON INDIAN BAND
also known as SAMSON CREE NATION
and the SAMSON INDIAN BAND
also known as SAMSON CREE NATION
Applicants
-
and –
DARRELL REGAN BRUNO,
DARWIN SOOSAY and LARRON NORTHWEST
Respondents
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
The
Applicants bring this motion for interim relief seeking an order staying or
suspending the operation of the October 2, 2006, decision of the Samson Cree
Nation Election Appeal Board (EAB) pending determination of the underlying
judicial review application of that decision. The decision purports to suspend
the government of the Samson Cree Nation and orders a new election for
Councillors of the Samson Cree Nation be held on Tuesday, October 17, 2006. The
Applicants specifically seek an order enjoining and prohibiting the holding of
any new election for Councillors under the October 2, 2006 decision and an
order confirming that, pending this Court’s determination of the underlying
judicial review application, the Councillors declared elected on May 19, 2005
and inaugurated on June 3, 21005 shall continue to hold office and to conduct
the day to day affaires of the Samson Cree Nation.
2. Background
[2]
The
results of the May 19, 2005 election held at the Samson Cree Nation were
challenged by two unsuccessful candidates. Two appeals were filed and upheld by
the EAB. The first
appeal, the “Soosay” Appeal, is based on the impugned candidacy of a successful
candidate, Mr. Larron
Northwest, whose nomination is said to offend section 4 of the Samson Cree
Nation Election Law, specifically, a candidate with a criminal record
having committed indictable offences. The second appeal, the “Bruno” Appeal,
challenges the Electoral Supervisor’s decision to allow voting to continue
after 6:00pm, contravening section 58 of the Election Law. On June 8, 2005 in allowing the appeals, the EAB ordered that a new election be
held on June 23, 2005.
[3]
The Applicants
were successful in securing a stay of the election pending judicial review of
the June 8, 2005 decision of the EAB. Ultimately, on July 4, 2006, the Federal
Court of Appeal allowed the Appeals “in part”. The Court sent the Bruno
complaint back for reconsideration with the express directions that the proper
interpretation of section 58 of the Election Law was that it only closed the voting
location at 6:00 p.m. and that the Electoral Supervisor had properly exercised
her discretion under section 16 of the Election Law to allow voters already
inside the location when the doors were closed at 6:00 p.m. to casts their
ballots. The court of Appeal also sent the Soosay complaint back to the EAB for
full reconsideration, having determined that Mr. Northwest had not received a
fair hearing.
[4]
The EAB’s
decision on reconsideration of the two complaints, as directed by the Federal
Court of Appeal, is the object of the underlying judicial review application to
this motion. It is common ground between the parties that the EAB respected the
principles of natural justice and afforded Mr. Northwest an opportunity to make
submissions. The hearing in reconsideration of the complaints was fair.
3. The impugned decision
[5]
The EAB decision
first considered the Bruno Appeal. The EAB observed that the issue of poll
closure had not arisen on appeal before in Samson Cree Nation. Notwithstanding
the Federal Court of Appeal’s directions, the EAB held that despite practices
of other communities and the interpretation of the words “poll” and “voting
location” the practice of the Samson Cree Nation is to cease voting at 6:00 p.m.
The EAB noted that over 300 people were let into the voting location and were
allowed to cast their votes well after 6:00 p.m. and by so doing affected the
outcome of the election. The EAB also determined that, in future, the Electoral
Supervisor shall seek advice from the EAB Chairperson in advance of the 6:00 p.m.
deadline when such a situation arises, and provided that there be 12 voting
stations in order to process the voters at an acceptable rate.
[6]
In respect to the
Soosay Appeal, the EAB found that since Mr. Northwest had been convicted of
indictable offences after the date of the coming into force of section 4 of the
Election Law, there was no need to refer to external interpretation aides to
understand the meaning of section 4 and how it should be applied. The EAB held
that the provision was clear; a member is not eligible to become or remain a
Chief or member of the Council for Samson Cree Nation if he is convicted of an
indictable offence after the date this provision comes into force. It matters
not whether Mr. Northwest obtained a cultural pardon, which is not disputed, or
a legal pardon under the Criminal Records Act. What matters, in the EAB’s view,
is that he was convicted of indictable offences and as a consequence is
ineligible as a candidate in the election.
[7]
The EAB concluded
that Mr. Northwest was disqualified under section 4 of the Election Law and
ordered a new election to be held on October 17, 2006.
[8]
The Applicants’
judicial review application is based upon the following arguments:
(a) The EAB has no jurisdiction or power to
suspend the government of the Samson Cree Nation;
(b) The EAB decision purports to remove or
restrict the discretion given to the Electoral Supervisor under section 16 of
the Election Law;
(c) The EAB decision fails to respect Federal
Court of Appeal directions in respect to the closing of the voting location
after 6:00 p.m.;
(d) The decision disqualifying Mr. Northwest
notwithstanding the Cree Cultural Pardon he received is based upon an erroneous
interpretation of section 4 of the Election Law.
[9]
Section 4 of the
Cree Nation Election Law provides as follows:
4. A Samson Cree member is not eligible to
become or remain a Chief or member of the Council for Samson Cree Nation if he:
(a) is
convicted of an indictable offence after the date this declaration comes into
force;
(b) has an
existing criminal record which includes as [sic] indictable offences as at the
date this Declaration comes into force:
(i) unless
such member has been granted a pardon through a Cree cultural and traditional
ceremony conducted by an elder of the Samson Cree Nation recognized for such
purposes by Chief and Council; or
(ii) unless
such member has been granted a pardon through the legal system
(c) was
guilty, in connection with an election, of corrupt practice, accepting or
offering a bribe, dishonestly or other wrongful conduct.
[10]
In order to
succeed on their motion for interlocutory relief the applicants must establish
that there is a serious issue to be tried in the underlying application for
judicial review, that irreparable harm would result to the Applicants if the
interlocutory injunction is not granted, and that the balance of convenience
operates in favor of staying the operation of the October 2, 2006 decision of
the EAB.
4. Serious Issue
[11]
I am satisfied
that the Applicants have raised serious issues in the underlying application.
In respect to the Soosay complaint, there appears to be an arguable case as to
whether a pardon can be invoked in respect of a conviction on an indictable
offence made after the date of the coming into force of the Election Law. There
is also an arguable case as to whether the pardon at issue was obtained through
a Cree cultural and traditional ceremony conducted by an elder of the Band
recognized for that purpose by its Chief and Counsel. In its findings the EAB
held that it was not necessary to address the issue of the recognition of the
Elder who conducted the pardon ceremony since the validity of the pardon is not
in question. The EAB essentially rejected arguments that a pardon obtained for
indictable offences committed subsequent to the coming into force of the
Election Law, would have no effect on eligibility, notwithstanding arguments in
respect to operation of the Criminal Records Act.
[12]
I am also of the
view that the October 2, 2006 decision of the EAB raises a serious issue in
respect to the Bruno complaint. From the reasons for decision it is arguable
that the EAB fails to comply with the directions of the Federal Court of Appeal
and apply the Court’s interpretation of section 58 of the Election Law
regarding the close of the voting location.
[13]
It is not for
this Court to determine the above issues on their merits at this time. Given
the low threshold required to be met, I am of the view that the Applicants have
met their burden of establishing serious issues for the purpose of this motion.
See: RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311 (QL) at para. 49.
5. Irreparable harm
[14]
The Supreme Court
of Canada in RJR MacDonald Inc. v. Canada (Attorney General), [1994] 1
S.C.R. 311, held that, “At this stage the only issue to be decided is whether a
refusal to grant relief could so adversely affect the applicants’ own interests
that the harm could not be remedied if the eventual decision on the merits does
not accord with the results of the interlocutory application.”
[15]
While the
Applicants’ evidence in respect to irreparable harm is rather meager, I am
nevertheless satisfied, in the circumstances that by allowing the October 17,
2006 election to proceed would result in irreparable harm to the Applicants. An
eventual decision on the merits setting aside the 2006 decision of the EAB
would have the effect of creating uncertainty in the Samson Cree Nation as to
the legitimacy and authority of its elected Council. Such a result would serve
to further undermine the election process, the very corner stone of democratic
institutions. In this sense, the harm could not be remedied and is consequently
irreparable.
6. Balance of convenience
[16]
In assessing the
balance of convenience the Court must take into account the public interest
which in this instance must be assessed by considering the needs and best
interest of the Samson Cree Nation. The balance of convenience is “a
determination of which of the two parties will suffer the greater harm from the
granting or refusal of an interlocutory injunction, pending a decision on the
merits”. See Manitoba (Attorney General) v. Metropolitan
Stores (MTS) Ltd.,
[1987] 1 S.C.R. 110 (QL), at paragraph 35.
[17]
There is already
in the Samson Cree Nation considerable uncertainty in respect to the status of
Council charge with the responsibility of governing the community. This
situation must not be further exacerbated.
[18]
By granting the
interim order prohibiting the holding of the election until the matters raised
in the underlying judicial review are resolved, I would temporarily suspend
what would otherwise be a validly ordered election. By granting the interim
order I would be preserving the status quo until the issues raised in respect to
decisions made by the EAB which essentially triggered the election call be
determined.
[19]
In my view, while
the present circumstances are less than ideal, the situation would be far more
uncertain if the elections were held and the Applicants were ultimately
successful in the their underlying application. In that event questions as to
the legitimacy of the election, otherwise validly and democratically held,
would be raised. Further uncertainty and disruption would result
regarding the status of the newly elected Council in the Samson Cree Nation,
not to mention issues that may arise regarding the status of the Council
elected following the May 19, 2005 election.
[20]
It is preferable,
in my view, to grant an interim order preventing the holding of the election
until the validity of decisions of the EAB which triggered the election call is
determined. In the circumstances, I am satisfied that the Applicants will
suffer the greater harm should the October 17, 2006 election be allowed to
proceed than would the Respondents should the interim order issue. The balance
of convenience therefore favors the Applicants.
8. Conclusion
[21]
This is the case
where the optimum result on this motion would be to preserve the status quo
until the issues raised in the underlying application are resolved. I find the
words of Lord Diplock in American Cyanamid Co v. Ethicon Ltd, [1975] 2
WLR 316, à propos. At paragraph 35 of his decision, he wrote that “where other
factors appear to be evenly balanced it is a counsel of prudence … to preserve
the status quo”.
[22]
I am satisfied
that the applicant has satisfied the tripartite test set out in RJR
Macdonald Inc., supra, for the granting of an interlocutory
injunction.
[23]
For the above
reasons the motion will be granted.
ORDER
THIS COURT ORDERS that:
1.
The motion is
granted;
2. The operation of the
October 2, 2006, decision of the Samson Cree Nation Election Appeal Board (EAB)
is stayed pending final disposition of the underlying application for judicial
review filed on October 4, 2006;
3. An interlocutory injunction is granted
enjoining the Samson Cree Nation from proceeding with the election scheduled
for October 17, 2006, pending final disposition of the underlying application for judicial
review filed on October 4, 2006;
4. The Applicants shall have
their costs on this motion.
“Edmond P. Blanchard”
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