Willier v. Sucker Creek Indian Band #150A, 2001 FCT 1325

Date: 20011203

Docket: T-57-01

Neutral citation: 2001 FCT 1325

BETWEEN:

                                                          RAYMOND WILLIER

                                                                                                                                            Applicant

                                                                           and

           SUCKER CREEK INDIAN BAND #150A also known as the SUCKER CREEK

             FIRST NATION, ALVIN CARDINAL, RUSSELL L. WILLIER, RONALD I.

           WILLIER, JOHN L. WILLIER, BEATRICE WRIGHT, NORMAN CALLIOU,

                RODERICK WILLIER, BARBARA OKEMOW, PAULINE OMINIYAK,

                                           MILES RUMLEY and KEN CARDINAL

                                                                                                                                      Respondents

                                                        REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                These reasons arise out of an application for judicial review in which the decision or decisions in respect of which review is sought is or are described in the following terms:

...in respect of the election held by the Respondent Sucker Creek Indian Band #150A on November, 28, 2000 (the"election"), the results of the election, and the failure of the Respondents to conduct an appeal of the election, pursuant to sections 12 through 12.9 of the Customary Election Regulations of the Sucker Creek First Nation #150A. Judicial review is sought of the continuing acts and decisions made with respect to the conduct of the election, from the beginning of the election process until notice was given that an Election Appeal Committee would not be formed on December 18, 2000.

[2]                At the opening of the hearing before me, counsel for the applicant indicated that the scope of the judicial review sought would be narrowed to only encompass judicial review of the notice, given on the 18^th of December, 2000, that an Election Appeal Committee would not be formed. Counsel further indicated that the relief sought would be a declaration that the Election Appeal Period provided for in the Customary Election Regulations of the Sucker Creek First Nation #150A had not expired and that the Electoral Officer appointed in relation to the election held on the 28^th of November, 2000 remained in office, and an Order setting aside the decision under review and referring the question of appointment of an Election Appeal Committee back to the Electoral Officer for redetermination in accordance with law and such directions as this Court considers appropriate.

[3]                At the end of the hearing of this matter, some of the counsel urged that I issue reasons for decision, without issuing an Order indicating what the outcome of this judicial review would be, in order to provide an opportunity for members of the First Nation to consider my reasons and for counsel to make submissions regarding any directions to the Electoral Officer that might be appropriate for inclusion in my Order, if I were to allow this application. These reasons are issued in accordance with that request.

BACKGROUND

[4]                The law governing the conduct of elections for Chief and Council of the Sucker Creek Indian Band #150A, also known as the Sucker Creek First Nation (the "First Nation"), is contained in the Customary Election Regulations of the Sucker Creek First Nation #150A (the "Election Regulations")^[1]. Section 5 of the Election Regulations provides for the appointment of an Electoral Officer at least thirty-five (35) days prior to the date fixed for an election, the qualifications of the Electoral Officer, and his or her remuneration. The term of appointment of the Electoral Officer is described in that section in the following terms:

The Electoral Officer's appointment will commence on the date specified in the Council Resolution [appointing the Electoral Officer] and continue until six (6) months after the expiry of the Election Appeal Period.

The duties of the Electoral Officer are specified to be as outlined in the Election Regulations, in Schedule "A" to those Regulations and "... as may be defined by the Council by Resolution from time to time." Provision is made in the Election Regulations for election appeals. Those provisions are set out in full in Schedule "A" to these reasons.

[5]                Of particular significance for the purposes of this matter, section 12.4 of the Election Regulations provides that the Election Appeal Committee in relation to any election will consist of nine (9) members and that volunteers will be asked for at the nomination meeting preceding the election. Here, the nomination meeting was held on the 11^th of November, 2000. It was not in dispute before me that volunteers for membership on the Election Appeal Committee were not asked for at the nomination meeting which was required to be conducted by the Electoral Officer.

[6]                Apparently the outcome of the election of the 28^th of November, 2000 was very close. Appeals from the results of the election were filed in accordance with the Election Regulations. The appeals related to persons included on the list of electors and the ballots that allegedly should have been counted and were not, or were counted and allegedly should not have been.

DECISION UNDER REVIEW

[7]                In a letter dated the 18^th of December, 2000 and addressed to four appellants in relation to the election of the 28^th of November, 2000^[2], the Electoral Officer wrote:

I am unable to form an Election Appeal Committee for the following reasons:

1.            I am unable to find the necessary number of qualified and unbiased individuals to serve on that committee;

2.             I am unable to find the necessary numbers of unbiased individuals who fall within each of the following categories of qualification:

                a)             three elders;

                b)             three persons aged between 31 and 64;

                c)             three persons aged between 18 and 30.

3.             I am unable to obtain the consent of the Lesser Slave Lake Police Commission to provide individuals to serve as the Appeal Committee, in lieu of the foregoing persons;

4.             I have been accused by some appellants of personal bias against election candidates, and therefore do not wish to be seen to influence any appeal process;

5.             I have been advised by legal counsel, that it appears that there exists an outstanding, unrevoked and unamended Indian Bands Council Elections Order..., having effect from 4^th March 1997, which states that the council of the Sucker Creek First Nation shall be selected, after the date of the coming into effect of the Order, by elections to be held in accordance with the Indian Act.

In view of the foregoing, I will not be forming an Election Appeal Committee.

You therefore have further remedies, which possibly may arise under either the Indian Act, or under the procedures now identified as "Customary Election Regulations of the Sucker Creek First Nation #150A." I do not comment on which may apply.                                                            [emphasis added; citation omitted]

ISSUES

[8]                The issues which arise on this application for judicial review as redefined at the hearing before me are the following: first, whether the Electoral Officer erred in deciding as she did, as reflected in the decision under review that is in part quoted above; second, whether the Electoral Officer is functus; and third, whether the relief as proposed and reflected earlier in these reasons is illusory in that, at this date, no Election Appeal Committee could be formed in compliance with the Election Regulations.

ANALYSIS

a)         Reviewable Error

[9]                Section 12 of the Election Regulations, as set out in Schedule "A" to these reasons, provides in section 12.4 for a nine (9) member Election Appeal Committee consisting of three (3) elders and three (3) members each from the two (2) age groups specified in the decision under review. It further specifies that:

To be a member of the Appeal Committee you must not be a part of the immediate family of the candidate in question or the person appealing.

[10]            As noted in the decision under review, the Electoral Officer determined that she could not find the necessary number of "qualified" and "unbiased" individuals necessary to constitute the Committee. Presumably, her reference to "qualified" was to qualified as to age and in the sense of not being part of the immediate family of a candidate in question in an appeal or of the person appealing. Her reference to "unbiased" individuals, I conclude, was to unbiased in relation to the outcome of the election and in relation to the appeals at issue. I am satisfied that the reference to "unbiased" was distinct from the issue of "qualified" both in the sense of age and in the sense of family membership.

[11]            I am further satisfied that it was not within the mandate of the Electoral Officer to consider bias. However reasonable it might have been to include such a consideration in her mandate, that consideration is not identified in the Election Regulations. It would be pure speculation on my part to consider whether unbiased and qualified individuals might have come forward at the time of the nomination meeting, if the Electoral Officer had called for volunteers at that time, as I conclude she was required to do. Clearly, in the immediate aftermath of what was apparently a hotly contested election that was close in its result and that was conducted within a relatively small community, the possibility of bias among those who were qualified as electors would have been high. As I have indicated, I will not speculate what the possibility of bias was on the 11^th of November, 2000. Equally, I will not speculate on whether bias continues to be present at this time, essentially a year after the election was conducted.

[12]            I am satisfied that the Electoral Officer erred in refusing to form an Election Appeal Committee on the basis that she was unable to find the necessary number of unbiased individuals among the elders of the First Nation and within each of the two specified age groups, to serve on that Committee.

[13]            The Electoral Officer, having failed to form an Election Appeal Committee by the first option provided for in the Election Regulations, albeit, as I determine, in error, she then went on to consider the alternative method for forming an Election Appeal Committee and found herself frustrated by the response of the Lesser Slave Lake Police Commission. I have no way of knowing, and once again I will not speculate, whether the position of the Lesser Slave Lake Police Commission would be the same today if qualified persons could not be found to serve on the Election Appeal Committee, without reference to the question of bias.

[14]            None of counsel appearing before me took the position that the Electoral Officer was correct in speculating that, in any event, the election of the 28^th of November, 2000, should perhaps have been conducted in accordance with provisions of the Indian Act^[3].

[15]            In summary, I conclude that the Electoral Officer erred in a reviewable manner in arriving at a decision not to form an Election Appeal Committee, as reflected in her letter of the 18^th of December, 2000, quoted in part above.

b)          Is the Electoral Officer Functus?

[16]            The Electoral Officer's appointment commenced on a date specified in the Council Resolution appointing her and continued or continues until six (6) months after the expiry of the Election Appeal Period. The Election Appeal Period is not defined in the Election Regulations. However, a review of the Election Regulations discloses that the mandate of the Electoral Officer extends to the conduct of run-off elections arising from an election for councillors or chief. One of the decision options open to an Election Appeal Committee is to call for a run-off election. Thus, if the Electoral Officer had appointed an Election Appeal Committee as I have concluded she was required to do on the facts before me, the Electoral Officer would have remained responsible for the conduct of any run-off election called for by the Election Appeal Committee.

[17]            From the foregoing, I conclude that the Election Appeal Period in respect of the election for council and chief held on the 28^th of November, 2000 does not expire until after a decision of an Election Appeal Committee appointed in relation to that election has been made, assuming appeals to have been lodged, as in fact was the case. If that decision were to be to call for a run-off election, I am further satisfied that the Election Appeal Period would not expire until after the run-off election had been held. I am further satisfied that the Electoral Officer could not shorten her term of responsibility by determining, in reviewable error, not to appoint an Election Appeal Committee.

[18]            In the result, I am satisfied that the Electoral Officer remains in office and is not functus.

Is the relief sought on behalf of the applicant illusory?

[19]            Counsel for Chief Alvin Cardinal urged before me that it would be a waste of time and resources to set aside the decision under review and to refer the issue of formation of an Election Appeal Committee back to the Electoral Officer on two grounds: first, that it would be impossible for the Electoral Officer to form an effective Election Appeal Committee in a manner that conforms to the Election Regulations; and second because the issues raised in the notices of appeal from the 28^th of November, 2000 election are, directly or indirectly, legal issues, and perhaps even constitutional issues, that could not be effectively dealt with by an Election Appeal Committee or, even if they could be effectively dealt with, are better dealt with by this Court. Counsel further noted that, as the application for judicial review in this matter was originally framed, the issues on those appeals were before the Court. For the propositions that the issues raised by the appeals are better dealt with by this Court, and should now be dealt with by this Court, counsel cited Big "C" First Nation v. Big "C" First Nation Election Appeal Tribunal^[4] where Mr. Justice Strayer, then of the Trial Division of this Court, wrote at pages 55-6:

...it must, I think, be concluded that it was never intended that this Tribunal [the Big "C" First Nation Election Appeal Tribunal] would have the authority to decide questions of law and jurisdiction raised in the election appeal.

[20]            The circumstances in which this matter comes before me are quite different than those that were before Mr. Justice Strayer. I find no basis on the material before me or the arguments of counsel before me on which to conclude that the Election Appeal Committee contemplated by the Election Regulations would not have the authority to decide questions of the nature raised in the appeals flowing from the election of the 28^th of November, 2000, that is to say, questions as to the qualification of certain electors and as to the validity of certain ballots at the election.

[21]                    In Lameman v. Cardinal^[5], I wrote at paragraph 25:

The Beaver Lake Tribal Election Law clearly empowers an Appeals Officer where he or she, "...after investigation...is satisfied that there was corrupt practice in connection with an election ...", to set aside the election. However, it makes no provision whatsoever for an Appeals Officer to order a new election and to reinstate an earlier elected Chief and Council. I can only conclude from a careful reading of the Beaver Lake Tribal Election Law and the related Regulations that these are powers reserved to the people of the First Nation themselves.

[22]            By analogy, I reach the following conclusion here: the people of the Sucker Creek First Nation clearly contemplated entrusting to an Election Appeal Committee, made up in the preferred option of members of their First Nation, the role of review of Election Appeals, and vested the Committee with broad powers of decision to remedy any election defect identified in such a review. In such circumstances, I am satisfied beyond a doubt that it is not for this Court to run roughshod over the will of the people of this First Nation and to intervene in the role reserved to the Election Appeal Committee where that Committee has had no opportunity to act and to perform the function reserved to it. It would, of course, be a different matter if a Committee, properly constituted, had dealt with an election appeal in a manner that reflected reviewable error. In such circumstances, relief could have been sought before this Court. But unless and until such circumstances arise, it would be entirely inappropriate for this Court to intervene and to, in effect, preempt the role reserved by the people of the First Nation to a properly constituted Election Appeal Committee.

[23]            The material before me simply does not disclose that it would be futile to refer this matter back to the Electoral Officer.

CONCLUSION

[24]            In the result, I will provide a declaration that the Election Appeal Period provided for in the Customary Election Regulations of the Sucker Creek First Nation #150A has not expired in relation to the election for chief and councillors held on the 28^th of November, 2000 and that the Electoral Officer appointed in relation to that election remains in office. Further, I will set aside the decision of the Electoral Officer dated the 18^th of December, 2000, and refer the question of establishment of an Election Appeal Committee in relation to the election for chief and councillors that was held on the 28^th of November, 2000 back to the Electoral Officer for redetermination.

__________________________________

       J. F.C.C.

Ottawa, Ontario

December 3, 2001

NOTE: As noted in the foregoing reasons, at this time, I will distribute the reasons without issuing an Order reflecting the result. The people of the Sucker Creek First Nation will have until the 21^st of December, 2000 to make representations through counsel that appeared before me on this matter as to any terms and conditions of my Order that they might consider appropriate. In the absence of any such submissions, an Order will issue without terms and conditions.

                                        SCHEDULE "A"

12.       ELECTION APPEALS

12.1     Grounds for Appeal of Election

Within fourteen (14) consecutive days of and including the Election Day, or in the event a Councillor or Chief is elected by Acclamation, within fourteen (14) consecutive days of and including the day of the nomination meeting, any Elector may appeal the results of an Election, By-Election or Run-Off Election if, on reasonable and probable grounds, they believe:

            a) An error: was made in the interpretation or application of the Regulations materially and directly affecting the conduct and outcome of the Election, By-Election or Run-Off Election.

            b) A Candidate did not meet the eligibility requirements set forth in 6.4 and 6.6.

            c) A Candidate was guilty of promoting or aiding corrupt Election practices including, but not limited to, bribery, threats and intimidation of Candidates, and/or Electors, in the Election, By-Election or Run-Off Election.

            d) A person voted who was not eligible to vote; or

            e) Any other circumstances or events materially and directly affecting the conduct and outcome of the Elections, By-Elections or Run-Off Election.

12.2     Notice of Appeal

            a) An appeal may be made by forwarding a Notice of Appeal in writing to the Electoral Officer at the Council Offices outlining the grounds for the Appeal.

            b) The Notice of Appeal must be received by the Council within fourteen (14) days from the Election Day or, in the case of an Election by acclamation, within fourteen (14) days from the Nomination meeting giving rise to the Appeal.

12.3     The Electoral Officer will promptly notify all Candidates for the office affected by the Notice of Appeal

12.4     Election Appeal Committee

            a) There will be nine members in the Appeal Committee, volunteers will asked for at the Nomination meeting.

            b) Three Elders, three people ages 31-64 and three people ages 18-30, to be selected at random by the Electoral Officer, if needed.

            c) To be a member on the Appeal Committee you must not be a part of the immediate family of the candidate in question or the person appealing.

            d) If enough volunteers can not be found, then the Lesser Slave Lake Police Commission will be asked to be the Appeal Committee.

12.5     Meeting of the Election Appeal Committee

            Subject to 12.6, within seven (7) days of having received the Appeal, the Electoral Officer will convene a meeting of the Committee for the purpose of hearing the Appeal. The meeting will be chaired by the Electoral Officer who will not be entitled to vote.

12.6     A notice of the meeting must be posted in the same places as the notices of Election, at least three (3) days prior to the date set for the meeting.

12.7     The appellant, the individual in respect of which the Appeal is brought and other interested parties or their representatives may present oral or written submissions to the Committee at the meeting.

12.8     Within three (3) days of the meeting the Committee will promptly make one of the following decisions:

            a) To deny the Appeal on the basis the evidence presented did not fully and properly establish the necessary grounds for an appeal.

            b)    To uphold the grounds for an appeal but allow the results of the Election in question to stand as the infraction did not materially or directly affect the result of the Election; or

            c) To uphold the appeal and call for:

                        i)    A new Election, By-Election or Run-Off Election.

                        ii) A new Election, By-Election or Run-Off Election for only those offices directly affected; or

                        iii) A Run-Off Election.

12.9     Forthwith, the Electoral Officer will notify affected parties of the decision.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:      T-57-01

PARLEE MCLAWS                                                          FOR RESPONDENT EDMONTON, ALBERTA

JOHN POIRIER          FOR RESPONDENT

EDMONTON, ALBERTA(CALLIOU ET AL)

FIELD ATKINSON PERRATON      FOR RESPONDENT

EDMONTON, ALBERTA(WILLIER ET AL)